Judicial Review & Judicial Activism

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Judicial Review

  • Power of Supreme Court to examine the constitutionality of a legislative and executive order. 
  • Though the phrase nowhere finds mention in the constitution, many articles explicitly mandate the laws to be in concurrence with the constitutional provisions and power the SC to examine for.
  • However, SC can examine any order on the basis of ‘procedure established by law’ i.e.: It is not expected to go into the question of efficacy or policy implications.

The power of judicial review is to uphold the supremacy of the constitution and not the supremacy of judiciary. In fact, the division of powers that exist in India is a balance of the American principle of Judicial Supremacy and the British principle of Parliamentary Supremacy.

Judicial Activism

  • It describes judicial rulings/directions suspected of being based on personal or political considerations rather than on existing law.
  • The court has been involved in resolving questions which belong to the executive.
  • It relaxes the traditional rule of Locus Standi (petition to be filed only by aggrieved party) under Art 32 and Art 226. 
  • Some provision is present in Art 142:  Enforcement of decrees and orders of Supreme Court, (for doing complete justice in any cause in the manner may be prescribed by the Parliament)
  • Now, SC/HCs take cognizance from a third party through Public Interest Litigation or “suo motu” (on its own).
  • The Public Interest Litigation (PIL) is an instrument devised by the courts to reach out directly to the public. 
  • Through the PIL, the court has expanded the idea of rights. Clean air, unpolluted water, decent living etc. are rights for the entire society. Therefore, it was felt by the courts that individuals as parts of the society must have the right to seek justice wherever such rights were violated.

However, it has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other and may be creating strains on this democratic principle.

Author: admin