The Indian constitutional framework is a meticulously designed edifice aimed at balancing power among the three principal organs of the state: the legislature, the executive, and the judiciary. Within this sophisticated system, two concepts stand out for their profound impact on governance, individual liberties, and the very interpretation of the Constitution: judicial review and judicial activism. While often intertwined and sometimes conflated, they represent distinct, albeit related, aspects of the judiciary’s role as the guardian of the Constitution and the ultimate arbiter of legal disputes.

Judicial review is an inherent power of the judiciary to examine the constitutionality of legislative enactments and executive actions, ensuring their conformity with the provisions of the Constitution. It serves as a vital check and balance mechanism, preventing the legislature from enacting laws that violate fundamental rights or exceed its prescribed powers, and similarly holding the executive accountable for actions that contravene the law or the Constitution. Judicial activism, on the other hand, describes a more assertive and interventionist approach by the judiciary, often characterized by a willingness to depart from conventional interpretations, expand the scope of fundamental rights, and address societal issues that other branches of government have purportedly failed to tackle. This proactive stance aims to deliver social justice and ensure effective governance, sometimes leading to perceptions of judicial overreach.

Judicial Review in India

Judicial review is a cornerstone of constitutionalism in India, though the term itself is not explicitly mentioned in the Constitution. Its power is implicitly and explicitly derived from several articles. Article 13 is pivotal, declaring that any law inconsistent with or in derogation of fundamental rights shall be void. This empowers the judiciary to strike down unconstitutional legislation. Articles 32 and 226 grant the Supreme Court and High Courts, respectively, the power to issue writs for the enforcement of fundamental rights, thereby making them the protectors of these rights. Article 131, 132, 133, and 134 empower the Supreme Court to hear appeals involving substantial questions of law as to the interpretation of the Constitution. Furthermore, Article 246, read with the Seventh Schedule, delineates the legislative powers of the Union and State legislatures, and the courts have the power to determine if a legislature has trespassed into the domain of the other. Articles 254 and 251 deal with the repugnancy between Union and State laws, allowing courts to invalidate state laws if they conflict with central legislation on a concurrent subject.

The evolution of judicial review in India has been marked by several landmark judgments. Early cases, such as A. K. Gopalan v. State of Madras (1950), demonstrated a more literal and less interventionist approach to interpreting fundamental rights. However, the trajectory shifted significantly with subsequent cases dealing with property rights and parliamentary power to amend the Constitution. In Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the Supreme Court held that the Parliament’s power to amend the Constitution under Article 368 extended to fundamental rights and that such amendments were not “laws” within the meaning of Article 13. This position was reversed in I. C. Golaknath v. State of Punjab (1967), where the Court ruled that Parliament could not amend fundamental rights, arguing that fundamental rights were transcendental and immutable.

The most significant development came with Kesavananda Bharati v. State of Kerala (1973), which introduced the “Basic Structure Doctrine.” This landmark judgment, while upholding Parliament’s power to amend the Constitution, asserted that this power did not extend to altering or destroying the basic structure or essential features of the Constitution. This doctrine effectively placed a substantive limitation on Parliament’s amending power and significantly strengthened the scope of judicial review. The Court did not provide an exhaustive list of what constitutes the “basic structure,” leaving it open for judicial determination in future cases. Subsequently, in Minerva Mills Ltd. v. Union of India (1980), the Supreme Court reiterated and strengthened the basic structure doctrine, holding that judicial review itself is a basic feature of the Constitution. The Court also struck down parts of the 42nd Constitutional Amendment Act, which had sought to curtail the power of judicial review.

The scope of judicial review in India is extensive, encompassing legislative acts, executive actions, and even constitutional amendments. It serves multiple purposes:

  • To uphold the supremacy of the Constitution: By ensuring that all laws and executive actions conform to the constitutional scheme.
  • To protect fundamental rights: Acting as a watchdog against any encroachment on the liberties guaranteed to citizens.
  • To maintain federal balance: Resolving disputes between the Union and states regarding legislative competence and ensuring that neither oversteps its constitutional boundaries.
  • To ensure rule of law: Guaranteeing that the government acts within the confines of the law and not arbitrarily.
  • To provide checks and balances: Preventing potential tyranny or abuse of power by the legislature or the executive.

Despite its critical importance, judicial review is not without limitations. The principle of separation of powers dictates that the judiciary generally refrains from encroaching upon the policy-making domain of the legislature or the executive. Courts apply a doctrine of “judicial restraint,” generally presuming the constitutionality of laws and policies unless a clear violation is established. The judiciary also respects legislative wisdom, refraining from substituting its own judgment for that of elected representatives unless there is a manifest unconstitutionality. However, the line between legitimate review and judicial overreach can often become blurred, especially when courts delve into areas traditionally considered the exclusive domain of other branches.

Judicial Activism in India

Judicial activism represents a dynamic and, at times, controversial facet of the Indian judiciary’s role. It is distinct from judicial review in its proactive and interventionist nature. While judicial review is about checking the constitutionality of existing laws and actions, judicial activism goes further by actively shaping policy, issuing detailed directions to the executive, and sometimes even filling legislative vacuums. Its roots in India can be traced back to the post-Emergency era of the late 1970s and early 1980s, a period marked by a decline in the credibility of the executive and legislative branches, and a growing public perception of their inability or unwillingness to address pressing social issues.

The primary vehicle for judicial activism in India has been Public Interest Litigation (PIL). Traditionally, the principle of locus standi (the right to bring an action to court) was strictly applied, meaning only an aggrieved party could approach the court. However, in the late 1970s, pioneering judges like Justice V.R. Krishna Iyer and Justice P.N. Bhagwati relaxed this rule, allowing any public-spirited individual or organization to file a petition on behalf of marginalized or disadvantaged groups who could not access justice themselves. Cases like Hussainara Khatoon v. State of Bihar (1979), which highlighted the plight of undertrial prisoners languishing in jails, and S.P. Gupta v. Union of India (1981), which formally established the concept of PIL, marked the dawn of judicial activism.

The factors driving judicial activism in India include:

  • Failure of other branches: Perceived inaction or inefficiency of the executive and legislature in delivering social justice, protecting human rights, or ensuring good governance.
  • Constitutional mandate: The expansive interpretation of fundamental rights, particularly Article 21 (right to life and personal liberty), which has been interpreted to include a plethora of rights such as the right to a clean environment, right to livelihood, right to health, and right to education.
  • Public Interest Litigation (PIL): As discussed, PIL provided an accessible mechanism for the judiciary to address systemic issues affecting large segments of society.
  • Social and economic disparities: The judiciary’s desire to bridge the gap between the constitutional ideals of justice, liberty, equality, and fraternity and the socio-economic realities of the nation.
  • Expanding human rights jurisprudence: Drawing inspiration from international human rights instruments and evolving global legal standards.

Judicial activism has manifested in various areas:

  • Environmental Protection: The M.C. Mehta series of cases led to significant environmental reforms, including the closure of polluting industries, mandating the use of CNG in public transport in Delhi, and the protection of the Taj Mahal.
  • Human Rights and Civil Liberties: Intervention in cases of police brutality, prison reforms, bonded labor, sexual harassment at workplace (Vishaka v. State of Rajasthan), and the right to dignity (Aruna Shanbaug v. Union of India).
  • Governance and Accountability: Directions on electoral reforms, disclosure of assets by candidates, police reforms, and measures to curb corruption.
  • Social Justice: Directives on issues like gender equality, rights of LGBTQ+ individuals (e.g., decriminalization of homosexuality in Navtej Singh Johar v. Union of India), and affirmative action policies.
  • Economic Policy: While generally hesitant, there have been instances where the judiciary has given directions related to economic policy, leading to debates about its institutional competence in such matters.

The impact of judicial activism has been multifaceted. On the positive side, it has undoubtedly played a crucial role in delivering justice to the marginalized, filling legislative gaps, enhancing accountability of the executive, and leading to significant social and environmental reforms that might not have otherwise materialized. It has expanded the scope of fundamental rights and made the Constitution a living document, responsive to societal needs.

However, judicial activism has also drawn considerable criticism. The primary concern is “judicial overreach” or “judicial usurpation” – the judiciary venturing into the domains of the legislature and executive, thereby blurring the lines of separation of powers. Critics argue that when courts issue detailed guidelines or monitor the implementation of policies, they effectively engage in law-making and executive functions, for which they lack both democratic legitimacy and institutional expertise. This can lead to a ‘judicial populism’ where courts respond to public sentiment rather than strict legal principles, or ‘judicialization of politics’ where policy decisions are increasingly sought to be resolved through litigation rather than political processes. Concerns are also raised about the judiciary’s accountability for policy outcomes, given that judges are not elected officials. There is also the potential for “tyranny of the unelected” if the judiciary assumes powers without corresponding checks and balances.

Interplay and Overlap

The concepts of judicial review and judicial activism, while distinct, are deeply intertwined in the Indian context. Judicial activism often utilizes the power of judicial review as its primary tool. For instance, when a court, through an act of activism, expands the interpretation of Article 21 to include the right to a clean environment, and then, based on this expanded right, strikes down an executive order permitting a polluting industry, it is exercising judicial review within an activist framework. The activist stance is in the expansive interpretation and proactive stance, while the actual act of invalidation is judicial review.

The fine line between legitimate judicial review and judicial activism remains a subject of continuous debate. Proponents argue that judicial activism is necessary when the executive and legislature fail in their duties, acting as a last resort for justice. They see it as a dynamic response to societal challenges, upholding the spirit of the Constitution even if it means venturing beyond conventional interpretations. Opponents caution against judicial overreach, emphasizing the importance of judicial restraint to preserve the delicate balance of powers and prevent the judiciary from becoming a super-legislature or a super-executive. The concept of “judicial restraint” serves as a counterbalance, advocating for judges to exercise self-control and defer to the elected branches where possible, intervening only when there is a clear constitutional violation or manifest injustice.

The evolving nature of the Indian judiciary reflects this ongoing tension. There are periods of greater activism and periods where a more restrained approach is advocated. The challenge for the Indian judiciary is to maintain its role as the ultimate interpreter and guardian of the Constitution, ensuring justice and upholding fundamental rights, without unduly encroaching upon the legitimate functions of the other branches of government. This balancing act is crucial for the healthy functioning of India’s democratic and constitutional edifice.

The practice of judicial review in India is fundamental to its constitutional democracy, serving as a powerful mechanism to uphold the supremacy of the Constitution, protect fundamental rights, and ensure accountability of the other branches of government. It is an indispensable check and balance, evolving through landmark judgments like Kesavananda Bharati to establish the basic structure doctrine, thereby preventing the wholesale alteration of the Constitution’s foundational principles. This power enables the judiciary to invalidate laws and actions that contravene the constitutional mandate, ensuring the rule of law prevails.

In parallel, judicial activism has emerged as a distinct, yet related, phenomenon, particularly through the innovation of Public Interest Litigation. This proactive stance has allowed the Indian judiciary to address pressing socio-economic issues, expand the scope of fundamental rights to meet contemporary challenges, and compel the executive and legislature to act where they have faltered. While lauded for its role in delivering social justice and holding powerful entities accountable, it also generates debate regarding judicial overreach and the blurring of institutional lines. The ongoing dynamic between judicial review and judicial activism underscores the judiciary’s pivotal, and often challenging, role in navigating the complexities of governance in a vibrant democracy, continuously striving to balance constitutional fidelity with the imperatives of social change and justice.