Discuss the practice of judicial review and judicial activism in India.

Judicial Review in India

Judicial review is a process through which courts examine the constitutionality of legislative actions and executive orders. In the context of India, judicial review is an essential feature of the Constitution, ensuring that laws and government actions align with the Constitution. This power is not explicitly mentioned in the Constitution, but it has been inferred from the provisions of the Constitution, particularly Articles 13, 32, 226, and 368.

Constitutional Basis

1. Article 13 empowers the judiciary to review laws made by the Parliament and the state legislatures. It declares that any law inconsistent with or in contravention of the Fundamental Rights shall be void. This gives the judiciary the authority to strike down laws that violate the Constitution, particularly the Fundamental Rights.
2. Article 32 grants the right to constitutional remedies, allowing citizens to approach the Supreme Court directly if their Fundamental Rights are violated. This reinforces the judiciary’s role in upholding constitutional supremacy.
3. Article 226 empowers the High Courts to review actions of the state, providing a parallel mechanism for judicial review at the state level.

The concept of judicial review was established by the Indian judiciary in the landmark case of Kesavananda Bharati v. State of Kerala (1973), where the Supreme Court held that judicial review is a part of the basic structure of the Constitution. This case cemented the judiciary’s role in ensuring that no law or constitutional amendment can alter the basic structure of the Constitution.

Functioning of Judicial Review

Judicial review in India acts as a check on the powers of the legislature and the executive, ensuring that their actions conform to the Constitution. It is primarily concerned with upholding the supremacy of the Constitution, protecting Fundamental Rights, and preventing arbitrary exercise of power by the state. Courts can annul laws or executive actions that are found to be unconstitutional.

Judicial review also ensures that laws and actions do not violate the principles of federalism, as set out in the Constitution, or violate the provisions that guarantee equality and fairness to citizens.

Judicial Activism in India

Judicial activism refers to the proactive role played by the judiciary in addressing societal issues, often stepping beyond the literal interpretation of the law to deliver justice. In India, judicial activism became prominent in the late 20th century, as the Supreme Court began taking a more assertive stance in interpreting the law and intervening in matters of public policy, governance, and human rights.

Key Features of Judicial Activism

1. Expansion of Fundamental Rights: Judicial activism in India is marked by the Supreme Court’s creative interpretation of Fundamental Rights. For instance, in Maneka Gandhi v. Union of India (1978), the Court expanded the scope of Article 21 (Right to Life and Personal Liberty) to include various rights, such as the right to privacy, right to a clean environment, and the right to livelihood. This case marked a shift towards a more expansive interpretation of rights to suit contemporary needs.
2. Public Interest Litigation (PIL): One of the most significant developments in Indian judicial activism is the introduction of Public Interest Litigation (PIL). PIL allows individuals or groups to approach the courts not only for personal grievances but also on behalf of the public or underprivileged sections of society. The Supreme Court, particularly under the leadership of Chief Justice P.N. Bhagwati and Chief Justice R.S. Pathak in the 1980s and 1990s, used PIL to address issues like environmental protection, human rights, and the rights of marginalized groups. This expanded the judicial role in addressing societal issues.
3. Social Justice and Accountability: The judiciary, through its activism, has been at the forefront of promoting social justice, especially for the marginalized sections of society. In cases like Vishaka v. State of Rajasthan (1997), the Supreme Court laid down guidelines to prevent sexual harassment at the workplace, filling the legislative gap until appropriate laws were passed. Similarly, in the case of Bandhua Mukti Morcha v. Union of India (1984), the Court took steps to release bonded laborers, asserting that the courts have a role in securing the rights of the most vulnerable sections of society.
4. Protection of the Environment: Judicial activism has also been pivotal in advancing environmental rights. In M.C. Mehta v. Union of India (1986), the Supreme Court used PIL to address environmental concerns, including air pollution and the Ganga river pollution, often taking suo-motu actions based on media reports or public petitions. The judiciary’s proactive role in enforcing environmental standards is a key example of activism.

Judicial Activism: Benefits and Criticisms

Benefits:

• Judicial activism has led to significant social reforms, especially in the areas of human rights, environmental protection, and the rights of vulnerable groups.
• It has filled gaps in legislation, such as in the case of sexual harassment and bonded labor, where the legislature was slow to act.
• It has reinforced the idea that courts are not mere interpreters of the law but are also guardians of justice and equality.

Criticisms:

• Critics argue that judicial activism often amounts to judicial overreach, where courts step into areas that are more appropriately handled by the legislature or executive. For example, in some cases, the Court has been criticized for making policy decisions, which is traditionally the domain of the elected government.
• There is concern that judicial activism can undermine the democratic principle of separation of powers, where the judiciary may overstep its boundaries and infringe upon the legislative and executive functions.
• Critics also argue that judicial activism can lead to the imposition of personal judicial values, rather than relying strictly on the Constitution and statutes.

Conclusion

Both judicial review and judicial activism are vital components of the Indian legal system. Judicial review ensures that laws and actions align with the Constitution, protecting fundamental rights and maintaining the supremacy of the Constitution. Judicial activism, on the other hand, has allowed the judiciary to play a more dynamic role in addressing social, economic, and political issues, expanding the scope of rights and ensuring justice in areas often neglected by the legislature.

While judicial activism has played an important role in the evolution of Indian democracy, it also raises questions about the proper balance of power among the three branches of government. The challenge lies in ensuring that judicial activism does not encroach upon the functions of the legislature or executive but continues to be a tool for justice, especially for marginalized and vulnerable groups.

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