Judicial Review and Judicial Activism

Judicial review is the power of the judiciary to declare the laws of the legislature and the orders of the executive unconstitutional if it feels that such laws/orders are contrary to the Constitution. The concept of judicial review is the American contribution to the world when Chief Justice Marshall, while pronouncing the verdict in Marbury v Madison (1803), declared that it was judiciary, which can decide on the Constitutionality of a law or a decree, provided it is found that the Constitution has been violated. The judicial review in India differs from what it exists in the USA. In the USA, the concept of judicial review is rooted in the doctrine of ‘due process of law’, while in India it is derived from a relatively lenient doctrine’procedure established by law.

In the State of Madras v V.G. Row (1952) case, Justice Patanjali Shastri had stated:

Our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution,….. So, came to be accepted the twin functions of judicial review

(i) legitimizing the government and (ii) protecting the Constitution against any under encroachment by the government. The judiciary makes use of judicial review to examine the actions of the legislature, executive and administrative wings. There are specific provisions in our Constitution which provide for judicial review, especially the provisions relating to Articles 13, 32, 131, 136, 226, 245 and 246. But the Supreme Court had specified certain rules for applying the doctrine of judicial review. Numerous laws and amendments have gone through judicial scrutiny from the time of the commencement of the Constitution.

During the first decade, the judiciary was reluctant to exercise the power of judicial review against the government while in the second decade, it did assert its authority and appeared in its legislative avatar (see Golak Nath case). In the following decades, the judiciary’s decisions were curtailed. Now the redeeming feature of judiciary is that no future government could clip its wings or dilute its right of judicial review. The story of judicial review goes as thus: The Kamesneshwar Singh v State of Bihar (1951), Ramesh Thapur v State of Madras (1950) and Motital v State of Uttar Pradesh (1950) were the cases where the Supreme Court, had exercised the power of judicial review, and had declared the abolition of zamindari through amendment. The amendment act was challenged in Shankari Prasad case (1951) and the Sajjan Singh case (1965) (in the latter case the 17th Amendment act was challenged). In both cases, the Supreme Court held the view that the Parliament was empowered to amend the Constitution.

But in the Golaknath case (1967), challenging the 17th Amendment on the ground that it had violated the Right to Property (Article 31A especially); the Supreme Court, reviewed its decision and held that the Parliament could not amend the Constitution which is violative of Article 13(2). Later, the court’s activism was witnessed in the 1969 Bank Nationalisation case and in the 1970 Abolition of Privy Purses ordinances when both ordinances, using the power of judicial review, were declared unconstitutional. The 24th, 25th and 26th amendments (all in 1971) defended the government’s action. The apex court waited till 1973 when through the Kesavananda Bharati case it upheld the Parliament’s power to amend the Constitution but did not allow the basic structure of the Constitution to be destroyed by the Parliament. The 42nd Amendment (1976) enhanced the power of the Parliament but in the Minerva Mills case (1980), the Supreme Court had endorsed the decision made in the Kesavananda Bharati case, with Justice Bhagwati making a point: It is for the judiciary to uphold constitutional values and to enforce constitutional limitations.

And yet, it may be remembered that judiciary need not become more than what its role is within the parameters of the principles of the ‘separation of power’: it has to interpret the Constitution, the spirit of what the Constitution stands for, as honestly as possible, and in the light of the will of the people. The judicial review is essential, but is not, and in fact, has not to be undemocratic. Judiciary has not to indulge in unnecessary judicial activism, not to transgress the frontiers of judicial norms. There is no acceptable definition of judicial activism and yet the notion of judicial activism exists. It is usually described as a proactive role played by the judiciary. Justice J.S. Verma says that judicial activism means the active process of implementation of the rule of law, essential for the preservation of a functional democracy.

While some extol it as judicial creativity and dynamism of judges, others criticise it by describing it as judicial extremism, judicial terrorism, transgression into the domains of the other organs of the state negating the constitutional spirit. Governance is not merely a law-making process; it is also law-execution, as also the establishment of justice. The three organs of the state perform three different functions. One can not put them in three different departments separately and thereafter expect their normal functioning. That is why the legislature, while doing its job of making legislation, performs certain administrative and judicial functions, so do the other organs. Fusion, and not separation of functions is important for good governance. And if in such a situation, the judiciary does perform relatively a more active role, judicial activism may not be interpreted as one that interferes or overacts.

Governance is something of a whole. What wrong is done if the judiciary fills up a vacuum? What is wrong if any organ, other than the judiciary, is supported by the judiciary? Judicial activism operates in a situation of ‘vacuum’, only when it is required. Judiciary does not make laws on its own, nor does it govern. The fear, among the critics of judicial activism, is that the judiciary, through it, overact and becomes the lawmaker, and thus disturbs the balance between legislature, executive and judiciary. Judiciary is not expected to make policy nor implement it. It is expected of judiciary to respect the boundaries that separate the three organs of the government. What atleast it can do or must do is to have a balance between the three organs. Justice Verma rightly says : Judicial activism is that which ensures proper functioning of all the organs and the best kind of judicial activism is that which brings about results with the least judicial intervention. If everyone else is working, we do not have to step in. Judicial activism is the judiciary acting, i.e., judiciary-in-action and not judiciaryin-intervention. He says, with a view to seeing that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile; the failure to bear this in mind would lead to chaos. It is imperative to preserve the sanctity and credibility of the judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.