Bharat SainiLast Updated on January 20, 2017 by Bharat Saini
Before we get involve in debate if it is possible to distinguish between judicial review and judicial activism in India we must first try to understand what is meant by these concepts. Judicial Review as defined by the political scientists and legal luminaries is the process by which a court reviews the constitutionality of a statue or the application of a statute, and rules either for it or against it on the basis of the same.
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Judicial Review: Meaning and Definition: Judicial Review refers to the power of the judiciary to interpret the Constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India. Judicial Review is the power of the Judiciary by which: (i) The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases. (ii) The court determines the constitutional validity of the laws and rules of the government; and (iii) The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution. |
Let us look at the case of National Judicial Appointments Commission Act, 2014 which was declared null and void in October 2015 by the Apex Court of India. National Judicial Appointments Commission was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14, 2014. The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by as many as 16 of the State legislatures. The NJAC act came into force from April 13, 2015. But by exercising its power to judicial review the Supreme Court in a historic verdict ruled in favour of collegiums system with the primacy of the judiciary in judges’ appointments as embedded in the basic structure of the Constitution, and hence declared unconstitutional an amendment to validate the National Judicial Appointments Commission (NJAC) Act on the ground that the National Judicial Appointments Commission (NJAC) interferes with the independence of the judiciary which is an “indispensable” feature of our constitutional set up and hence unalterable. This example clearly illustrates what we mean or understand by the power of judicial review which is to be exercised by the court in case the passed law, in any way, encroaches on spirit as enshrined in the basic structure of the Constitution.
Contrary to the principle of judicial review which has been vested in the court and laid down in article 13 of the Constitution of India. Judicial activism is view that court unnecessarily interferes in the functioning of other organs of the government particularly in the functioning of the executive. We in India have constitutional scheme in place wherein supremacy of Parliament is clearly established, unlike the system in USA where system works on the principle of checks and balance and judiciary is supreme over the other organs of government. In India the role of the judiciary is that of interpreter and guardian of the Constitution. The Judiciary is supposed to keep itself well within parameters set for it by the constitutional scheme of things and not to cross Laxman Rekha delivering any such ruling that may be construed as infringement or encroachment on the jurisdiction of Executive or the Legislature. But it has been witnessed in India that on so many times failure on the part of the Executive and the Legislative entailed interference from Judiciary and the judiciary had to intervene and pass judgement. Look at the cases like the Bhopal Gas tragedy (Bhopal disaster), Kesavananda Bharati (Kesavananda Bharati v. State of Kerala) case among others in which the judiciary was left with no option but had got involved actively of what came to be known as judicial activism. It was also called in media and political circle as judicial overreach.
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JUDICIAL ACTIVISM Judicial Activism is that way of exercising judicial power which seeks fundamental re-codification of power relations among the dominant institutions of State, manned by members of the ruling classes.
Unlike American Constitution, Indian Constitution itself provides scope or we can say that makes space for emergence of judicial activism by virtue of Articles 13,32, 226,141,142.But this term was explained and recognized by the Supreme Court in Golaknath’s case wherein the court laid down the judicial principle of Prospective Overruling by giving wider beneficial interpretation of Article 13 of the Constitution.
In real sense the history of judicial activism in India began in late seventies when the strict rule of locus standi was given a final rest in S.P. Gupta v Union of India [1981 supp scc87],popularly known as Judges transfer case. In this case Justice Bhagwati better known as champion of PIL, inter alia observed “where a legal wrong or legal injury is caused or threatened to a person or determinate class of persons and as such person or determinate class of person is by reason of poverty, helplessness or disability of socially or economically disadvantaged position, unable to approach the court of relief ;any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Art 226 and in Supreme Court under Art 32,seeking judicial redress for the legal wrong or injury caused to such person.” |
So far is the question of distinguishing between judicial review and judicial activism in India is concerned there should not and cannot be any confusion. The classic example of striking down National Judicial Appointments Commission (NJAC) is part of judicial review process and is totally constitutional whereas the following recent rulings to correct things in different spheres ,which have set the tongues wagging, are what can be taken as case of judicial activism :
- SC recently ordered government to set up a bad loans panel to collect dues or even with respect to write-offs.
- SC recently issued notice to Arunachal Pradesh Governor Jyoti Prasad Rajkhowa, under Article 361, according to which the governor and the President are not answerable to any court in the exercise of powers and duties of office. The order was later recalled.
- Chief Justice of India T.S. Thakur recently said time has come to audit the performance of the government which raised many eyebrows.
- Reforming Board for the Control of Cricket in India (BCCI) by the Supreme Court is being seen by many of us as classic case of judicial activism.
