Concept of Judicial Review and Judicial Activism | Constitution of India

The Constitution is the supreme law of the land, and all organs of the State are required to function within the limits prescribed by it. Judicial review enables the courts to examine legislative and executive action and invalidate it when it violates the Constitution. Over time, however, the Indian judiciary has adopted a more proactive approach in protecting rights, enforcing constitutional values and addressing situations where legal or administrative remedies have been inadequate. This proactive approach is commonly described as judicial activism. Thus, while judicial review represents a constitutional power of the judiciary, judicial activism refers more broadly to the manner in which that power may be exercised to advance justice and constitutional objectives.

Judicial Review

Judicial review is the power of the judiciary to examine the constitutional validity of legislative enactments, executive orders and other governmental actions.

Where a law or executive action is found to be inconsistent with the Constitution, the courts may declare it unconstitutional and unenforceable to the extent of the inconsistency.

The doctrine of judicial review originated in the United States and is generally associated with the landmark decision of the US Supreme Court in Marbury v. Madison (1803), delivered under Chief Justice John Marshall.

In India, however, judicial review does not depend merely on judicial precedent. The Constitution itself confers this power upon the Supreme Court and High Courts through several provisions.

The Supreme Court has also held that judicial review is a basic feature of the Constitution. Consequently, Parliament cannot completely exclude or destroy the power of judicial review even through a constitutional amendment.

Scope of Judicial Review

Judicial review in India broadly operates in three areas:

1. Review of constitutional amendments to determine whether they violate the basic structure of the Constitution.
2. Review of legislation, including laws made by Parliament, State Legislatures and subordinate legislative authorities.
3. Review of executive and administrative action to determine whether governmental authorities have acted within the limits prescribed by law and the Constitution.

Thus, judicial review acts as an important constitutional check on the exercise of governmental power.

Grounds for Judicial Review

The constitutional validity of a legislative or executive action may generally be challenged on the following grounds:

1. Violation of Fundamental Rights - A law or executive action that infringes the Fundamental Rights guaranteed under Part III may be declared unconstitutional.
2. Lack of legislative competence - A law may be invalid if the legislature that enacted it lacked the constitutional authority to legislate on the subject. This becomes particularly important in the context of the distribution of legislative powers between the Union and the States.
3. Violation of other constitutional provisions - A law or executive action may also be invalid where it is inconsistent with any mandatory provision or requirement of the Constitution.

Constitutional Basis of Judicial Review

Although the expression “judicial review” does not appear expressly in the Constitution, its power flows from several constitutional provisions.

1. Article 13 - Provides that laws inconsistent with or in derogation of Fundamental Rights shall be void.
2. Article 32 - Guarantees the right to approach the Supreme Court for the enforcement of Fundamental Rights and empowers it to issue appropriate directions, orders and writs.
3. Articles 131–136 - These provisions confer various forms of original and appellate jurisdiction upon the Supreme Court, enabling it to examine constitutional and legal questions arising before it.
4. Article 143 - Enables the President to seek the advisory opinion of the Supreme Court on questions of law or fact of public importance.
5. Article 226 - Empowers High Courts to issue writs not only for the enforcement of Fundamental Rights but also “for any other purpose.”
6. Article 227 - Vests High Courts with the power of superintendence over courts and tribunals within their respective territorial jurisdiction, subject to constitutional exceptions.
7. Articles 245 and 246 - Lay down the territorial and subject-matter limits of legislative power of Parliament and State Legislatures. These provisions provide the constitutional basis for examining legislative competence.
8. Articles 251 and 254 - Deal with situations involving inconsistency between Union and State laws and provide for the supremacy of Parliamentary law in the circumstances specified therein.
9. Article 372 - Provides for the continuance of pre-Constitution laws, subject to their consistency with the Constitution.

Thus, judicial review is not derived from a single constitutional provision but operates through a network of constitutional provisions.

Importance of Judicial Review

Judicial review performs several important constitutional functions:

1. Upholding constitutional supremacy - The Constitution is the supreme law of the land. Judicial review ensures that the legislature and executive remain within the constitutional limits of their powers.
2. Protection of Fundamental Rights - It enables courts to invalidate laws and governmental actions that violate the Fundamental Rights of citizens.
3. Maintaining federal balance - The Constitution distributes legislative and executive powers between the Union and the States. Judicial review helps ensure that neither level of government exceeds its constitutionally assigned sphere.
4. Preventing arbitrary exercise of power - Judicial scrutiny acts as a check against the arbitrary or unconstitutional exercise of governmental authority.
5. Maintaining constitutional governance - Judicial review ensures that all organs of government remain subject to constitutional limitations and that the system of limited government is preserved.

Judicial Review: Part of Basic Structure of the Constitution?

The Supreme Court has consistently recognised judicial review as an essential component of the constitutional system.

In L. Chandra Kumar v. Union of India (1997), the Supreme Court held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 forms part of the basic structure of the Constitution.

Therefore, Parliament cannot completely exclude the jurisdiction of constitutional courts to examine legislative or executive action.

Judicial review is consequently not merely an ordinary power of the courts; it is an important mechanism for preserving constitutional supremacy, Fundamental Rights and the rule of law.

Judicial Review of the Ninth Schedule

The Ninth Schedule was introduced through the First Constitutional Amendment Act, 1951, along with Article 31B. Article 31B was intended to provide protection to laws included in the Ninth Schedule from being invalidated on the ground of violation of Fundamental Rights. However, this protection is not absolute.

Case: I.R. Coelho v. State of Tamil Nadu (2007)

In this landmark case, the Supreme Court held that laws inserted into the Ninth Schedule on or after 24 April 1973 are not completely immune from judicial review.

The significance of 24 April 1973 is that the Supreme Court delivered its judgment in Kesavananda Bharati v. State of Kerala on that date and propounded the basic structure doctrine.

The Court held that:

• Judicial review itself forms part of the basic structure of the Constitution.
• Merely placing a law in the Ninth Schedule cannot give it blanket immunity from judicial scrutiny.
• Post-24 April 1973 Ninth Schedule laws can be examined to determine whether they damage or destroy the basic structure.
• The impact and effect of the law, rather than merely its form or manner of enactment, are relevant in determining its constitutional validity.
• Where a law inserted into the Ninth Schedule substantially damages a Fundamental Right forming part of the basic structure, the protection of the Ninth Schedule cannot save it.

The judgment therefore established that constitutional amendments inserting laws into the Ninth Schedule are themselves subject to the basic structure limitation.

Judicial Activism

Judicial activism refers to a proactive approach adopted by the judiciary in interpreting the Constitution and laws, protecting rights and providing effective remedies, particularly where conventional legal mechanisms may be inadequate to address a serious constitutional or social concern. It involves a judiciary that does not merely apply existing legal rules mechanically but may adopt creative and purposive interpretations to advance constitutional values and secure justice.

The term “judicial activism” originated in the United States and was coined by American historian Arthur Schlesinger Jr. in 1947.

In India, judicial activism became particularly prominent from the 1970s onwards, with judges such as Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai playing an important role in its development.

Judicial activism is often contrasted with judicial restraint, under which courts exercise greater self-restraint and defer more readily to the decisions of the legislature and executive.

Judicial Activism in India

Judicial activism in India has manifested itself through several developments, including:

1. Expansion of the scope of Article 21 and recognition of several rights as part of the right to life and personal liberty.
2. Relaxation of locus standi, which facilitated the development of PIL.
3. Epistolary jurisdiction, under which letters and communications concerning serious rights violations have, in appropriate circumstances, been treated as petitions.
4. Creative interpretation of constitutional provisions to advance Fundamental Rights and constitutional values.
5. Issuing guidelines in areas where legislative or regulatory mechanisms were absent, particularly where constitutional rights required immediate protection.
6. Continuing mandamus, whereby courts retain supervisory jurisdiction over a matter and monitor compliance with their directions.
7. Expansion of access to justice, particularly for vulnerable and disadvantaged sections of society.

Thus, judicial activism has significantly contributed to the expansion of the practical meaning of constitutional rights in India.

Distinction between Judicial Review and Judicial Activism

Judicial review and judicial activism are closely connected but cannot be used interchangeably.

In simple terms, Judicial review answers the question: “Is the governmental action constitutionally valid?” Judicial activism concerns the broader question of “How actively should the judiciary interpret and enforce constitutional values?”

Important Case Laws

1. Maneka Gandhi v. Union of India (1978) - The Supreme Court gave an expansive interpretation to Article 21 and held that the procedure depriving a person of life or personal liberty must be fair, just and reasonable. The judgment contributed significantly to the expansion of Fundamental Rights jurisprudence.
2. Hussainara Khatoon v. State of Bihar (1979) - The Court recognised speedy trial as an essential component of Article 21 and highlighted the plight of under trial prisoners. The case also demonstrated the emerging use of judicial processes to protect disadvantaged groups.
3. Vishaka v. State of Rajasthan (1997) - In the absence of specific legislation governing sexual harassment at the workplace, the Supreme Court laid down the Vishaka Guidelines to protect women from such harassment. The guidelines operated until Parliament enacted the relevant legislation.
4. Vineet Narain v. Union of India (1998) - The Supreme Court issued directions concerning the functioning of investigative agencies and emphasised the need for institutional accountability and independence in the investigation of matters involving public officials.
5. M.C. Mehta cases - Through a series of environmental cases, the Supreme Court developed and applied important principles relating to environmental protection, public liability and sustainable development, demonstrating the proactive role of the judiciary in protecting constitutional and public interests.

Judicial Activism and Judicial Restraint

Judicial activism is generally contrasted with judicial restraint.

Judicial restraint emphasises:

• respect for the constitutional role of the legislature and executive;
• adherence to established legal principles;
• institutional limitations of courts;
• greater deference to democratically elected institutions; and
• caution against entering essentially political or policy domains.

Judicial activism, on the other hand, emphasises:

• protection of Fundamental Rights;
• purposive interpretation of constitutional provisions;
• effective remedies;
• intervention where constitutional duties are not adequately discharged; and
• protection of vulnerable sections and public interests.

Neither approach can be viewed in absolute terms. The judiciary has to maintain a constitutional balance between protecting rights and respecting the separation of powers.

Concerns Regarding Judicial Activism

While judicial activism has contributed significantly to the development of constitutional rights, excessive judicial intervention can raise certain concerns:

1. Judicial overreach – Courts may enter areas primarily falling within the legislative or executive domain.
2. Separation of powers – Excessive judicial intervention may disturb the constitutional balance between the three organs of government.
3. Policy-making by courts – Courts may sometimes be criticised for entering complex policy matters that require specialised institutional expertise.
4. Lack of democratic accountability – Unlike legislatures, judges are not directly accountable to the electorate.
5. Possibility of inconsistency – Excessive reliance on judicial discretion may result in uncertainty in constitutional interpretation.

Therefore, judicial activism must operate within the framework of the Constitution, rather than becoming a substitute for legislative or executive functions.

Conclusion

The Indian constitutional system does not envisage either an entirely passive judiciary or an unrestricted judicial authority. The judiciary has the constitutional responsibility to protect Fundamental Rights, preserve constitutional supremacy and ensure that governmental institutions act within their prescribed limits. At the same time, the legislature and executive possess their own constitutionally assigned fields of responsibility. The ideal approach is therefore one in which judicial intervention is strong enough to protect the Constitution and individual rights, but restrained enough to respect institutional boundaries.

Judicial review is an essential mechanism through which the courts preserve the supremacy of the Constitution, protect Fundamental Rights and ensure that governmental power remains within constitutional limits. Judicial activism represents a more proactive dimension of judicial functioning, through which courts have expanded rights, developed remedies and addressed constitutional concerns that might otherwise remain un-redressed. Together with PIL, these developments have significantly widened access to justice in India. However, their legitimacy ultimately depends upon maintaining the balance between judicial intervention, separation of powers and constitutional restraint.