Judicial Review vs Judicial Activism

At a Glance

• What it is The relationship and difference between interpreting law and shaping policy
• Judicial activism Proactive role of the judiciary in protecting rights
• Opposite Judicial restraint
• Coined 1947 by Arthur Schlesinger Jr.
• Exam link UPSC Prelims, Polity: Judicial Review

Where Does It Fit?

This is the third topic of the category on Judicial Review. The concepts of judicial review and judicial activism are closely related, but there is a difference between them. Each has its own purpose and limits.

Meaning of Judicial Activism

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 society. It implies the assertive role of the judiciary in forcing the other two organs, the legislature and the executive, to discharge their constitutional duties. It is also known as judicial dynamism and is the antithesis of judicial restraint, the self-control exercised by the judiciary. The term was first coined in 1947 by the American historian Arthur Schlesinger Jr. In India the doctrine was introduced in the mid-1970s, and Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai laid its foundations.

It has two major aspects in India: directions issued by courts to government authorities to protect citizens’ rights and promote public interest, where Public Interest Litigation falls; and the interpretation of Fundamental Rights, particularly Article 14, Article 19 and Article 21, whose scope the courts have expanded.

Judicial Review versus Judicial Activism

Since about the mid-20th century, a version of judicial review has acquired the nickname judicial activism, especially in the USA. In India, participants in the debate often mix them up. The expanded concept of locus standi in connection with PIL has expanded the jurisdictional limits of courts exercising judicial review, and the expanded role is described by critics as judicial activism.

Justifications and Apprehensions

Dr B.L. Wadehra lists the reasons for judicial activism: near collapse of responsible government when the legislature and executive fail; the pressure on the judiciary to step in for the suffering masses; judicial enthusiasm for social reform, which encourages PIL and liberalises locus standi; legislative vacuum; and the scope given by the Constitution itself. Subhash Kashyap adds that the judiciary may intervene when the legislature fails, in a hung legislature with a weak government, when those in power avoid hard decisions, when the legislature and executive fail to protect basic rights, and when the courts were misused during the Emergency; but also that courts sometimes become victims of craze for populism and publicity.

Upendra Baxi lists six types of fears about judicial activism: ideological (usurping powers of the legislature and executive), epistemic (lack of expertise), management (adding to arrears), legitimation (orders that may be ignored), democratic (whether PIL nurtures or depletes democracy) and biographic (the judge’s own future).

Judicial Restraint

Judicial restraint holds that the role of judges is scrupulously limited: their job is to say what the law is, leaving law-making to legislators and the executive, and not to let personal political values colour their opinions. In the USA the doctrine rests on six assumptions, including that the Court is non-elective, that separation of powers and federalism require deference, and that the Court depends on Congress and public acceptance; all except the one about the origin of judicial review hold good in India as well. In December 2007 the Supreme Court called for restraint, saying that judges must know their limits, must not try to run the government, and that judicial activism must not become judicial adventurism; it noted that the remedy for failing legislatures or executives is the people’s vote and not judicial takeover, and that restraint is consistent with the balance of power and protects the independence of the judiciary.

Why Is This Topic Important?

• Contrast questions Asked in Mains and Prelims
• 2007 observations Useful quote for answers
• Link to PIL Leads to 18.5

What Came Next?

The next topic covers landmark judicial review cases.

Key People and Terms

• Judicial activism Assertive judicial role
• Judicial restraint Judicial self-control
• Locus standi Right to approach the court
• Judicial adventurism Activism beyond limits
• Legislative vacuum Absence of law on a subject

Exam Corner

Mains Angle

Questions on this topic usually ask for a balanced view. Use these points to add depth.

• Rights expansion Articles 14, 19, 21
• PIL Relaxed locus standi
• Limits Separation of powers and expertise
• Supreme Court view 2007 call for restraint