Judicial review-Judicial activism-Judicial overreach-Difference and comparison in indian context.

Judicial review, Judicial activism, Judicial overreach are frequently seen in news and have narrow differences. We are explaining each with difference and examples in this article in upsc mains point of view.

JUDICIAL REVIEW: Legislative have power to draft laws but its not absolute. Judicial review is the process where judiciary is entitled to review the validity of executive or legislative actions when challenged by the affected person.

Judicial Activism: Judicial activism denotes a more active role taken by Judiciary to dispense social justice like suo motto, PIL, New doctrines..etc which may not have constitutional backing.

Judicial over reach: The line between Judicial activism and Judicial Overreach is very narrow. In simple words, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. Repeated intervention may diminish faith on government and may lead to tyranny of non accountable judges.

JUDICIAL REVIEW & JUDICIAL ACTIVISM- Difference

 

Judicial review	Judicial activism
Provided in article 13, enforced through A32 and 226	Eventhough Judicial Activism has no constitutional articles to support its origin, A142 is relevant for indian judiciary invention.
Reviews constitutionality	Ensures constitutionality of law in its effect.
Under basic structure	Extension of JR for justice delivery.
Passive -review of law	Active- direct actions
When challenged by affected person.	Can be suo motto or PIL.
Works under ‘locus standi’ within court	Overcome such limitations and extends justice beyond ‘locus standi’.
Example- Article 32 empowering citizen to move to SC ·         Striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.	Example- PIL for people who dont have any locus standi. ·         Say incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL..etc

Scope of judicial review in india

1. Power: The power of Judicial Review comes from the Constitution of India itself (Articles 13, 32, 136, 142 and 147 of the Constitution).
2. Evoking power: The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
3. For fundamental rights: Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
4. For protecting legal rights: Under article 226, HC can review violation of rights other than fundamental rights.
5. Special leave for appeal: Even though not mandatory, Under A136 , one day every week is reserved for filing special leave to appeal in SC for protecting rights of a person.

There are some provisions limiting scope of JR

• As judiciary mainly follow ‘procedure established by law’ ,it limits its scope.
• Judiciary while checking the constitutionality of law, examine only substantive question of law.
• Provisions of constitution like ‘ Doctrine of separation of power’ also draw line of separation.
• Provisions like 9th schedule, delimitation commission, money bill..etc also limit scope of judicial review.

Concerns associated with Judicial review if crossed limit.

The line between judicial activism and Judicial Overreach is very narrow.

1. Frequent interference limits functioning of executive
2. Violating separation of power set by constitution (article 50)
3. Judicial overreach when central govt is weak like 1990s
4. Repeated intervention may diminish faith on government & may lead to tyranny of non-accountable judges

Judicial review is needed in a progressive society but judiciary should keep itself confined to avoid overreach overstepping boundaries.