Constitutional Law Aspects of Judicial Review and Judicial Activism

By | May 16, 2020
Judicial Review and Judicial Activism

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Constitutional Law Aspects of Judicial Review and Judicial Activism | Overview

This article by Aparna Ramamoorthy deals with Constitutional Law Aspects of Judicial Review and Judicial Activism. It highlights the origin, needs and criticisms. 

Constitutional Law Aspects of Judicial Review and Judicial Activism

In a democracy governed by law, Judiciary constantly stands as the sentinel on the qui vive to protect the Fundamental Rights of the people. The judiciary keeps the scales of justice even between the citizens and the state, or between the Centre and the States, or between the States inter se. It is the obligation of the judiciary to see that the Constitution is not violated by any governmental organ and hence the judiciary is called as the guardian and protector of the Constitution. It is for the courts to scrutinize every act of the government with a view to ensure that it is in conformity with the Constitution.

If a law passed by the legislature or an act done by the executive is inconsistent with a constitutional provision, the court will say so and declare the law or the act as unconstitutional and void. This power of the judiciary is known as the judicial review. In a written Constitution, courts not only interpret ordinary laws and do justice between man and man, but they also give meaning to the cold letter of the Constitution. Dowling emphasizes the judicial role in the U.S.A. by saying:

“The study of Constitutional law… may be described in general terms as a study of the doctrine of judicial review in action”.

I. Judicial Review

Judicial review encompasses the power of the judiciary to review actions of legislative and judiciary thus enshrining the principle of Rule of Law and maintaining separation of power principle at the grassroots level.

In other words, it means that the constitution is the supreme law of the land and any law inconsistent therewith is void. The courts perform the role of expounding the provisions of the constitution and exercise the power of declaring any law or administrative action which may be inconsistent with the constitution as unconstitutional and hence void. This judicial function stems from a feeling that a system based on a written constitution can hardly be effective in practice without an authoritative, independent and impartial arbiter of constitutional issues and also that it is necessary to restrain governmental organs from exercising powers which may not be sanctioned by the constitution. 

A. Genesis/Origin of Judicial review

The origin of judicial review can be traced back to a US landmark case Marbury v. Madison (5 U.S. 137). However, before the Constitution, the legislation of the American colonies was subject to judicial review. But, after the Constitution, in 1803, in the famous case of Marbury v. Madison, the U.S. Supreme Court very clearly and specifically claimed that it had the power of judicial review and that it would review the constitutionality of the Acts passed by the Congress.

Although the modern doctrine of judicial review is ascribed to Marbury v. Madison, as noted above, the idea underlying judicial review, can be traced to the natural law doctrine according to which man-made law was susceptible to correction and invalidation by reference to a higher law. Thus the genesis of the judicial review is as follows,

The 19th century begun with the idea of positivism. According to which legislative laws were considered to be supreme and the role of the judiciary was very limited. According to positivists, popular legislation is the only valid source of law and the power of the judiciary is limited to deciding cases as per the law legislated by the bodies which have the authority to legislate laws (legislature). Then during the Nazi – Fascists era (Nazi laws which were made by the democratically elected body were considered morally wrong), there arose a need to have a check over such legislative laws. This is based on the natural law principles which attempted to safeguard the immutable rights of the people from legislative disregard.

The function of oversight of such legislations falls on the Judiciary. It is necessary to make clear that the judiciary per se is not the check and the reality check is the immutable rights/ values that the people possessed. These values/norms were started to be written down in Constitution to make it more certain. For these written down norms to be operationalized, judiciary came into play with the device of Judicial Review.

The framework of the modern constitution and judicial review joins the abstract ideals of natural law with concrete provisions of positive law. Thus the judiciary through the power of judicial review, they are giving practical expositions to the abstract norms of natural law.

B. Judicial review under Indian Constitution

Unlike the U.S.A., the Constitution of India explicitly establishes the doctrine of judicial review in several Articles, such as 13, 32, 131-136, 143, 226 and 246. The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the Constitution.

Article 13(2) even goes to the extent of saying that,

“The state shall not make any law which takes away or abridges the rights conferred by this Part [Part III containing Fundamental Rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

The courts in India are thus under a constitutional duty to interpret the Constitution and declare the law as unconstitutional if found to be contrary to any constitutional provision. The courts act as a sentinel on the qui vive so far as the Constitution is concerned.

Underlining this aspect of the matter, the Supreme Court stated in State of Madras v. Row  (AIR 1951 Mad 147) that the Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution.

As the Supreme Court emphasized in A.K. Gopalan[1]:

 “In India it is the Constitution that is supreme” and that a “statute law to be valid, must in all cases be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not” and if a legislature transgresses any constitutional limits, the Court has to declare the law unconsitutional “for the Court is bound by its oath to uphold the Constitution.”

Therefore, the courts in India cannot be accused of usurping the function of constitutional adjudication; it is a function which has been imposed on them by the Constitution itself. It is a delicate task; the courts may even find it embarrassing at times to discharge it, but they cannot shirk their constitutional responsibility.

In a number of cases, the Supreme Court has emphasized the importance of judicial review in India. Khanna, J., emphasized in Kesavananda Bharti[2] case:

“As long as some Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened…… Judicial review has thus become an integral part of our Constitutional system……”

In his minority judgement in Minerva mills[3] , Bhagwati, J., observed :

“It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that ‘the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law.’ The power of judicial review is an integral part of our constitutional system…. the power of judicial review… is unquestionably… part of the basic structure of the Constitution.”

Ahmadi, C.J. in L. Chandra Kumar v. Union of India,[4] has observed :

“The judges of the Supreme Courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations…….”

Thus, the jurisdiction conferred on the Supreme Court under Art. 32 and on the High Courts under Arts. 226/227 of the Constitution has been held to be part of the inviolable basic structure of the Constitution which cannot be ousted even by a Constitutional Amendment.

C. Critical evaluation of Judicial Review

i) Limitations

  1. Schedule IX

Any legislation put under Schedule IX is immune from judicial review. As it has been said that the Doctrine of Basic Structure is the very essence of the Constitution of India and therefore, there cannot be any act, rules or regulations which can overrule the Basic Structure doctrine. Since the Fundamental Rights forms a part of the Basic structure, therefore, every act inserted in the Ninth Schedule has to undergo the Fundamental Rights test.

The Fundamental Rights test means that the law etc. which has been inserted in the Ninth Schedule has to be tested that whether they are transgressing their border and violating the Part III of the Constitution. If they are seen and observed that they are doing so then, that law, rule or regulation would be said to be inconsistent to the Fundamental Rights and hence liable to be struck down from the Constitution.[5]

  1. Not to interfere with policy matters

Judicial review of policy and political matters is not possible. The Supreme Court has often said that judicial review is not concerned with policy-making functions of the State and particularly those involving financial implications. However, the judiciary has reluctantly heard certain policy-related issues in the past among other cases includes 2G spectrum issue. Also, it is often said that judicial review is not directed against the decision, as such, but is confined to the decision-making process.

  1. No suo moto

Another limitation for judicial review is that the court cannot automatically take up an issue for review through its suo moto power. It has to wait until it is challenged by some party.

ii) Criticisms

  1. It is considered to be Anti-democratic

Some have asserted that judicial review is undemocratic as the judges who declare statutes unconstitutional are neither elected by nor are responsible to, the people. According to them, judiciary (usually a constitutional bench consists of 5-7 judges) consisting of 5-7 judges sitting over the wisdom of the elected parliamentarians and holding the law to be void is unacceptable. Judiciary being empowered to decide the fate of the law which represents the sovereign will of the people is against the democratic principles.

  1. Assumed power

It is asserted that it is a usurpation of power by the judiciary as the Constitution is silent on the point of judicial review and there is no explicit provision for judicial review given under the constitution.

  1. Creates admin problems

When the judiciary holds a legislated law to be void i.e., void ab initio the law is made void since the date of its inception. This may disrupt the administrative actions which has been taken under such legislation and creates much chaos.

  1. Judicial review is reactionary

Legislature creates a law for the needs of the people. If the judiciary is testing such laws against the constitution which has a more static value it does not help in the development and fulfilment of the needs of the people.

  1. It can create delay and inefficiency

This concept of judicial review may slow down the process of enforcing as the enforcing officers have an apprehension that the law would be held invalid by the courts at any time and they may wait for the court’s approval. It further makes the legislature less responsive, there are possibilities of legislature shifting its burden to the judiciary.

  1. It creates a fear of judicial tyranny

  2. Reversal of its own judgement/decision by the courts is a drawback

Counter argument: There are many scholars who do not agree with these views. They argue that democracy need not have all officials elected and that judicial review is democratic as it promotes democracy by safeguarding the rights of the people and cabining government organs within the confines of the constitution. In a democracy, the majority may not always be right and there always lurks the danger of oppression of the minority by the majority. Judicial review can keep such a tendency in check by keeping the majority within the bounds of the constitution.

In the words of Chief Justice Warren:

“The Court’s essential function is to act as the final arbiter of minority rights.”

iii) Justifications for Judicial Review

To start with judicial review has proved to be very essential and useful in India’s democratic and federal structure. Judiciary through the instrument of Judicial Review played an important and desired role in the protection and development of the Constitution. There are overwhelming reasons as to why the courts should act as an authoritative expounder of the constitution and possess the power of judicial review.

  1. Judicial review is necessary for maintaining the supremacy of the constitution

A written constitution is not a self-executing document and would be reduced to a mere paper document in the absence of an independent organ to interpret, expound and enforce the same. If a law inconsistent with the constitution were not to be declared void, then the written constitution loses all its value and significance. When a law is in opposition to the constitution, it is the duty of the courts to follow the constitution and not the law.

About the significance of judicial review in a written constitution, Schwartz observes:

“A constitution is naught but empty words if it cannot be enforced by the courts. It is a judicial review that makes constitutional provisions more than mere maxims of political morality. In practice, there can be no constitution without judicial review. It provides the only adequate safeguard that has been invented against unconstitutional legislation. It is, in truth, the sine qua non of the constitutional structure.

  1. Judicial review acts as a check for the possible misuse of power by Executive and legislature

The judicial review serves as a necessary check on the possible excesses by the legislature and the executive. The legislature and the executive are politically partisan bodies and are committed to certain policies and programmes which they wish to implement. They would often seek to bend the constitution to their own views and accommodate their own policies. The constitution would thus become a plaything of the politicians. The judiciary is by and large free from active political bias, is politically neutral, and so can be expected to bring to bear a somewhat detached and non-political outlook on constitutional interpretation.

  1. Judicial Review is a devise for protecting the rights of people

In the absence of any effective enforcement machinery, the Fundamental Rights in the constitution will be reduced to mere empty words with no restraint on the government or the legislature. No one can deny the fact that Judiciary acts as an umpire/ arbiter between centre and the state and help in balancing the powers between them. Thus federalism and fundamental rights have given a new dimensions to the significance of the judicial role of constitutional interpretation.

  1. Judicial Review is necessary to strengthen the judiciary

Independence of judiciary is a mandate in a democratic government. The very independence of the judiciary may be threatened without the judicial review. The courts will eventually lose its power to safeguard the Constitution. This is because the power of Judicial review helped the Supreme Court in exercising its duty as a guardian of the constitution / the sentinel of the qui vive of the fundamental rights of the Constitution.

These are the more abiding considerations in favour of judicial review.

D. Judicial Review in different nations

The judicial review can be classified into a strong form of judicial review and a weak form of judicial review. They are known as variants of judicial review. A democracy without some form of judicial review is said to be defective/deficient.

Britain

Britain has no written constitution and, therefore, there is no direct judicial review there. But courts do resort to indirect judicial review at times. They interpret constitutional provisions restrictively to protect civil liberties. The judicial review in India thus stands on much firmer ground than in Britain because while the jurisdiction of the British courts to issue writs may be regulated by legislation, the same cannot be done in India.

Canada/ Australia

The Constitution of Canada or Australia does not contain any express provision for judicial review, yet the process goes on and judicial review has become an integral part of the constitutional process. The doctrine of judicial review was ingrained into the legal fabric of Canada and Australia as a result of colonial rule.

U.S.

The doctrine of judicial review is an integral part of the American judicial and constitutional process although the U.S. Constitution does not explicitly mention the same in any provision. The Constitution merely says that it would be the supreme law of the land.

II. Judicial Activism

According to Black’s Law Dictionary judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” In the Harper Collins Dictionary of American Government and Politics, the term judicial activism has been defined as “the making of new public policies through the decision of judges”.

Judicial activism is a species of judicial review is premised upon a fact that the judges go beyond their traditional role of interpreting the Constitution and act as independent policymakers on behalf of the society at large. Judicial activism can be coined as judicial creativity, judicial craftsmanship, judicial law-making, imaginative sharing of passion, look beyond the law, etc.

Abdication of power by the political organs of the state, advent of democracy, judicial review, weak and unstable governments are the reasons for the growth of judicial activism. The idea of judicial activism is that the Judges should use the powers to alter the injustices especially when the other branches of the government do not act to do so. In simple words, the courts should play an active role in shaping the policy on issues like civil rights, protection of individual rights, public morality and political unfairness.

A. Origin of judicial activism

The origin of the judicial activism can be traced back under the Constitution of Britain during the period of Stuart (1603 – 1688). Through the activism of Justice Coke, judicial activism was first introduced in Britain in the year 1610.

Justice Coke declared that the evolving the principles of Judicial review if a law made by the Parliament has abridged the Principles of ‘common law’ and ‘reason’ the courts might review and declare as null and void. His theory has been reiterated by Sir Henry Hobart in the year 1615 and Sir John Holt in the year 1702.

B. Judicial activism in India

In the article ‘The Supreme Court: 1947′ written by Arthur Schlesinger, he coined the term ‘judicial activism’. Though the history of judicial activism dates back to 1803 when concept of Judicial review was evolved by chief justice Marshall in celebrated case of Madbury v/s Madison[6].

The emergence of judicial review gave birth to a new movement which is known as judicial activism. Judicial activism has turned into an most important means to enhance the applicability of the particular legislation for the betterment of the society. Unlike the other countries’ constitution, Indian constitution, by virtue of Articles 13,32,226,141 and 142 provides the scope for the emergence of judicial activism.

The term ‘Judicial Activism’ has been explained and recognized by the Supreme court in the case of Golaknath vs State of Punjab[7] where it has laid down the judicial principle of Prospective Overruling by giving wider beneficial interpretation of Article 13 of the Indian constitution. In a real sense, the history of judicial activism in India began in the late seventies when the strict rule of locus standi was given a final rest in S.P Gupta vs. Union of India[8] which is popularly known as Judges Transfer case. The following are a few cases where the judiciary has used the concept of judicial activism in India,

  1. AK Gopalan v. State of Madras[9]
  2. Kharak Singh v. State of Uttar Pradesh[10]
  3. Satwant Singh Sawhney v. Union of India[11]
  4. Maneka Gandhi v Union of India[12]

C. Public interest litigation and Judicial Activism:

Public interest litigation means litigation filled in the court of law in order to protect the interest of the general public. Public interest litigation has not been defined in any particular statute whereas it has been interpreted by the Judges. It is the power granted to the public by the courts. This type of litigation has been encouraged in order to provide easy access to the unprivileged section of the society.

Development of PIL has provided significant assistance in making judicial activism meaningful. On account of this type of litigation, the court has found an opportunity to give directions in the public interest and enforce the public duties.

D. Judicial activism and Indian Constitution

Articles 13, 32, 226, 141 and 142 are of importance in the concept of judicial activism. Through these Articles, the Supreme court and the high courts have played a important role in redressing several issues related to the society and the environment. Article 32 empowers the Supreme Court of India to be the guarantor and the protector of the fundamental rights. Article 13 has given power of judicial review to the Apex court.

In the exercise of the judicial review, it can examine the constitutionality of an executive or legislative act. And the high courts too have the same power in this regard. Article 141 indicates the apex court to declare the law and not to legislate it, but in course of its function to interpret the law, it alters the law. Article 142 empowers the Supreme court to pass such orders that are necessary for doing justice in any cause or issue pending before it.

E. Criticisms

The theory of judicial activism has faced some criticisms too.  They are,

  1. Judicial activism has been mainly criticised that in the name of judicial activism judges bring in their own biasness and personal opinions.
  2. The theory of Separation of powers has never been taken into consideration and is simply thrown out. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the State. Once Justice Katju and Justice Mathur quoted, “Judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors

Even if all these criticism is valid no one would suggest abolishing this strategy which the courts have innovated to reach justice to the deprived section of the society. To answer the above criticisms is that judicial activism is more of a behavioural concept of the judges concerned. Whether judicial activism is positive or negative activism depends upon one’s own vision for social change. The importance of judicial activism vests with position granted to the institution as a place of hope for those who were aggrieved.

III. Conclusion

The responsibilities which a Court carries in a country with a written constitution are very onerous. The courts thus act as the Supreme interpreter, protector and guardian of the supremacy of the constitution by keeping all authorities–legislative, executive, administrative, judicial or quasi-judicial–within legal bounds.

In a constitution having provisions guaranteeing Fundamental Rights of the people, the judiciary has the power as well as the obligation to protect the people’s rights from any undue and unjustified encroachment by any organ of the State. Further, in a country having a federal system, the judiciary acts as the balance-wheel of federalism by settling disputes between the Centre and the States, or among the States inter se. Federalism is a legalistic form of government because of distribution of powers between the Centre and the States by the constitution itself, and, therefore, an arbiter is needed to draw a balance between the Centre and the States.

The task of interpreting the constitution is a highly creative judicial function. A democratic society lives and swears by certain values–individual liberty, human dignity, rule of law, constitutionalism, limited government, and it is the task of the judiciary to so interpret the constitution and the law as to constantly inculcate these values on which democracy thrives. Therefore, the courts must so interpret the constitution that it does not fall behind the changing, contemporary societal needs. The words of the constitution remain the same, but their significance changes from time to time through judicial interpretation.


By – Aparna Ramamoorthy


[1] 1950 SCR 88

[2] (1973) 4 SCC 225

[3] AIR 1980 SC 1789

[4] 1997 (2) SCR 1186

[5] I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861

[6] 1803 U.S. LEXIS 352

[7] 1967 SCR (2) 762

[8] 1982 2 SCR 365

[9] AIR 1950 SC 27

[10] 1964 SCR (1) 332

[11] 1967 SCR (2) 525

[12] (1978) 2 S.C.R. 621


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