Concept of Judicial Review, Judicial Activism & Overreach

The concept of Judicial Review: The doctrine of Judicial Review originated and developed in the   USA in the famous case of “MARBURY vs. MADISON” (1803) by John Marshall (the then chief justice of American Supreme Court).

By definition, Judicial review is the power of Judiciary to review the constitutionality of any act or order of Legislative and Executive wings.  If found violative of the Constitution i.e. ultra vires, they can be declared as unconstitutional, null and void.

The Supreme Court of India has declared the power of Judicial Review as a “BASIC FEATURE” of the Constitution (Indira Gandhi vs. Raj Narain case, 1975). Judicial Review is also called as the interpretational and observer roles of the Indian Judiciary.

The phrase Judicial Review has nowhere been used in the Constitution, but the provisions of several articles explicitly confer the power of Judicial Review. They are-

• Article 13 – declares that any law which contravenes any of the provisions of the Fundamental Rights shall be void.
• Article 32 and 226 – entrusts the roles of the protector and guarantor of Fundamental Rights to the Supreme and High courts.
• Article 372 – establishes the judicial review of pre-constitution legislations.
• Article 251 and 252 – in case of inconsistency between union and state laws, the state law shall be void.
• Article 245 – the powers of both Parliament and State Legislatures are subject to the provisions of the Constitution.
• Article 131-136 – entrusts the court with the power to adjudicate disputes between individuals, between individual and state, between state and union.
• Article 137 – special power to the SC to review any judgment pronounced or order made by it.

Importance of Judicial Review

• To uphold the principle of the supremacy of the Constitution.
• To maintain federal equilibrium i.e. balance between centre and state.
• To protect Fundamental Rights of the citizens.
• It is essential for independence of Judiciary.It prevents tyranny of executives.

Problems with Judicial Review

• It limits the functioning of the government.
• It violates the limit of power set to be exercised by the Constitution when it overrides any existing law.
• The judicial opinions once taken become standard for other cases.
• Judgment may be influenced by personal or selfish motive.
• Repeated intervention of the court can diminish the faith of the people in integrity, quality and efficiency of the government.

Judicial Activism

• The concept of Judicial Activism originated and developed in the USA.
• This term was first coined by Arthur Schlesinger in 1947.
• In India, this concept was introduced by Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai.
• Judicial Activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society.
• In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
• PIL (Public Interest Litigation) is the outcome of Judicial Activism.

Judicial Overreach

• Judicial Overreach occurs when a court acts beyond its jurisdiction and interferes in the areas which fall within the mandate of executive and legislative organs.
• It means that the court has violated the doctrine of separation of power by taking on the functions such as law enforcement, policy framing or framing of laws or interfering in the day to day activities of the executive.
• The courts also encroach on the role of executive by taking executive decisions.

Cases related to Judicial Activism/ Judicial Overreach –

1. Kesavananda Bharti case (1973):- concept of “Basic Structure” was introduced by the Supreme Court.
2. Maneka Gandhi vs. Union of India case (1978):-

 SC introduced –

• The concept of “Due Process of Law”
• Right to Life as embodied in Article 21 is not merely animal existence but it includes within its ambit right to live with human dignity.
• Shyam Narayan Chouksey vs. Union of India case (2018):- The SC made it mandatory for all cinema halls to play National Anthem before the start of the movie.
• Visakha vs. state of Rajasthan (1997):- The court laid down guidelines for prevention of sexual harassment of women at workplaces (commonly known as Visakha guidelines).

Advantages of Judicial Activism

1. Addresses inaction on part of legislature and executive.
2. Makes Judiciary vibrant and pro-people.
3. Promotes transparency and accountability in governance.
4. Helps in protection of the spirit of the constitution by interpreting articles in wider purview. Ex. – Article 14, 19, 21, 32, etc.
5. Prevents arbitrary state actions.
6. Provide checks and balances on the executive. Ex. – 2G allocation, coal scam, etc.

Problems with Judicial Overreach

1. It might destroy the spirit of the constitution as democracy works on the principle of separation of power between the organs.
2. It creates conflict between the Judiciary and the other organs i.e. Legislature and Executive.
3. It diminishes the trust of the people in public institutions which can be dangerous.
4. Entertaining all the PILs can overburden the Judiciary.
5. Courts are non-elected and non-representative body which violates the policy of the Democracy.

Way Ahead

• With the power of Judicial Activism, the courts act as a custodian of the Fundamental Rights.
• Making laws is the function and duty of the Legislature, to implement them in a proper manner is responsibility of the Executive while the Judiciary is for interpretation of laws. Only a fine equilibrium between these organs can sustain the constitutional values.