Context:

Recent Supreme Court decisions on Article 370, Governor's Bill assent authority, and judicial use of Article 142 have stoked discussions on court overreach once more.

Judicial Review and Judicial Activism in India

Judicial review is a cornerstone of India's constitutional structure. Although not explicitly mentioned in the Indian Constitution, it has been inferred from Article 13, which ensures that laws inconsistent with the Constitution are void.

Judicial activism, while distinct, is often employed alongside judicial review to address situations where rights are under threat. Below are the key aspects of Judicial Review in India:

Constitutional Basis of Judicial Review

• Implicit in Article 13: Article 13, which declares laws incompatible with the Constitution void, generates the idea of judicial review.  Although the Constitution makes no clear reference to judicial review, this clause gives the court authority to assess law constitutionality.
• Judicial Review and Constitutionality: Judicial review ensures that all laws and actions taken by the government comply with the Constitution's supremacy, maintaining the rule of law. Kesavananda Bharati v. State of Kerala (1973) affirmed the idea that Parliament cannot amend the Constitution’s basic structure.

Importance of Judicial Review

• Protection of Fundamental Rights: Protecting fundamental rights is one of court review's main functions.  It helps people to question laws or executive decisions that violate their fundamental rights, as in the Maneka Gandhi v. Union of India (1978) case, in which the right to life and personal liberty was read broadly.
• Checks and Balances: Judicial review stops the legislative and executive bodies from acting arbitrarily with their power. For example, the Supreme Court invalidated portions of the 42nd Amendment in Minerva Mills v. Union of India (1980), therefore strengthening the court's function as a check on Parliamentary excess.

Judicial Activism and Its Role

• Activism in Extreme Cases: Judicial activism comes into play when the judiciary steps in during extreme cases to safeguard rights or protect public welfare, even in matters beyond its immediate reach. Article 142 has been used, although sparingly, to address complex cases like the irretrievable breakdown of marriages.
• Balanced Approach: In an attempt to reconcile the two, the court guarantees that democratic values are respected and justice is rendered. Two instances of the Supreme Court's attempts to avert religious and civic conflict are the Babri Masjid case and the policies on mob lynching.

Criticism and Debates

Critics claim excessive judicial review can affect government. Some political leaders worry about judicial review's overreach in disputed cases, while others disagree. During delicate topics like Jammu and Kashmir's Article 370 abrogation, which prompted law and order concerns, the judiciary has helped prevent civil wars.

How is it related to Article 13? Declares inconsistent laws void Article 13(1) and (2) declare that any law violating Fundamental Rights is invalid to the degree of the violation.  This gives the courts authority to review and reverse such legislation. For example, in A.K. Gopalan v. State of Madras (1950), the court affirmed the Preventive Detention Act, but it also established the judiciary's power to evaluate statutes under Article 13. Article 13 serves as the cornerstone for judicial review by requiring that all laws (past and future) adhere to Fundamental Rights. For example, in Kesavananda Bharati v. State of Kerala (1973), the court cited Article 13 to declare that constitutional revisions are open to judicial scrutiny if they contradict the basic structure or Fundamental Rights. Article 13 defines "law" as ordinances, orders, bye-laws, rules, regulations, and so on, subjecting all state actions to court review. For instance, the court said in official of West Bengal v. Committee for Protection of Democratic Rights (2010) that Article 13 covers all official actions and guarantees their consistency with basic rights.

Judicial Activism and Its Impact on Indian Democracy

Origins of Judicial Activism

• In India, judicial activism became an indispensable weapon during crises—especially the Emergency (1975–77).  Public Interest Litigation (PIL) the Supreme Court instituted to provide more access to justice—especially for underprivileged groups of people.
• This period marked the Court’s proactive stance in ensuring justice, though it also led to criticism about judicial overreach.

Judicial Activism and the Emergency

• The Emergency Supreme Court action seemed incongruous.   While introducing PILs post-Emergency protected democratic norms, it overlooked civil rights in the 1976 ADM Jabalpur case, when the Court removed even the right to life.   This decision violated democracy and disappointed courtgoers.
• However, in response to this failure, the Court later embraced a more proactive role in defending rights and freedoms, exemplified by the Maneka Gandhi v. Union of India (1978) case, which expanded the scope of Article 21 (Right to Life and Personal Liberty).

Judicial Scrutiny of Article 142

• Article 142's authority for the Supreme Court to issue any order in the interest of "complete justice" has been challenged. Some worry that the courts will use these powers too liberally, particularly in matters involving worker rights and compensation for victims of custodial deaths.
• In spite of the criticisms, Article 142 has played a crucial role in filling legal gaps and guaranteeing justice in cases when no law is in place. To illustrate this point, the Court sidestepped traditional legal procedures in the Union Carbide Case (1989) by utilising Article 142 to get compensation for the Bhopal Gas Tragedy victims.

Criticism of Judicial Activism

• Critics argue that the judiciary has increasingly aligned with the executive and government decisions. Notable instances include:
• Upholding demonetisation and the Rafale deal.
• Refusing to recognise same-sex marriages and declining to probe the Pegasus surveillance issue.
• Declining petitions on the Citizenship (Amendment) Act (CAA) and EVMs.
• These decisions have raised concerns about the independence of the judiciary and its role in defending democratic values.

Strengthening Democratic Values Post-Emergency

• Post-1977, the Court adopted judicial activism in reaction to the Judicial abdication during the Emergency, particularly by reiterating the basic structural concept.
• In Minerva Mills v. Union of India (1980), the Court ruled that judicial review is part of the basic structure of the Constitution, protecting it from any amendment by Parliament.

Criticism and Concerns Surrounding Judicial Review

Judicial review, which is an essential part of constitutional government, has been the subject of a number of criticisms and concerns regarding the possibility that it could be abused.   The democratic legitimacy, the separation of powers, and the potential of the judiciary to issue decisions that are arbitrary are at the core of these concerns.

Objection to Judicial Review

• Democratic Deficit: One of the primary criticisms of judicial review is that unelected judges should not have the power to overturn laws passed by a democratically elected government. This can be seen as undemocratic, as it places the fate of laws in the hands of an unelected judiciary rather than the will of the people.
• Tension between Majority Rule and Constitutional Supremacy: A rift between constitutional supremacy and majoritarian democracies is ushered in by judicial review. Although democratic rule permits legislation to be enacted by a simple majority vote, the Constitution guarantees that all laws must be consistent with basic values, regardless of popular opinion.
• Role of Governor and President: The discretionary powers of the Governor or President should not be exercised arbitrarily. They must respect the democratic will as expressed by State Assemblies and Parliament.

Validity of the Objection

• Fundamental Rights and Constitutional Supremacy: When it comes to issues of basic rights, federal provisions, or legislative procedures, scholars contend that the objection against judicial review is not sound.   Although political issues are best addressed through democratic means, this does not mean that the supremacy of the constitution, which protects individual rights and institutional balance, can be undermined.
• India's Constitutional Supremacy: Unlike the UK, where Parliamentary supremacy prevails, India’s Constitution holds supremacy. Constitutional values define Parliament and other democratic institutions in India, thus judicial scrutiny guarantees that these values are preserved.

Concerns about Misuse

• Overreach and Separation of Powers: Overreach by the judiciary into executive or legislative spheres is a real possibility as a result of judicial review. As an illustration of how the separation of powers could be undermined, consider the possibility of court interference in policy decisions.
• Arbitrary Decisions: The broad discretion granted by Article 142 of the Constitution can lead to arbitrary decisions, which may not be grounded in established legal principles. A case in point is the Babri Masjid Case (2019), where the court’s judgment, prioritizing peace over legal principles, was criticized for potential political bias.

Need for Fair Criticism of Judges

• Any democratic system depends on criticism of its judges; nonetheless, it should be fair and helpful. Assigning evil intentions or asserting that the court compromises democracy is unfair and negative. Given India's low judge-population ratio, judges should especially be appreciated for their diligence and commitment.
• Though the Chief Justice of India (CJI) has not lately delivered any significant rulings, it is nevertheless important to acknowledge the efforts being made, particularly in sensitive matters like the Places of Worship Act, which try to maintain peace and stability in the country.

The role of the judiciary in maintaining democracy and federalism

• Supreme Court Bar Association (1998): The Supreme Court ruled that powers under Article 142 cannot be utilised to overrule existing laws.
• These powers are curative, not legislative, and cannot contradict statute law or the Constitution.
• Preserving Democracy and Federalism: The Tamil Nadu case highlighted how the Court can uphold democracy and federalism by prohibiting unelected governors from functioning as super-constitutional figures.
• Maru Ram v. Union of India (1981): Justice Krishna Iyer emphasised that constitutional powers should not be abused for personal gain or vanity, and should be kept within reasonable limits.
• Political Doctrine: The political question doctrine, which frequently limits court engagement in some matters, cannot be used mindlessly when authorities have clearly acted maliciously, as in the Tamil Nadu case.
• Timelines Set by the Court: The Supreme Court's deadlines for Governor actions do not modify the Constitution, but rather serve to determine whether actions are arbitrary or non-arbitrary.
• Qaiser e Hind (2001): Justice Dorairajan stated that the President's assent is a constitutional exercise of power and should not be seen as a simple formality.

Way forward:

• Strengthen mechanisms to insulate the judiciary from executive and legislative influence while maintaining impartiality and constitutional integrity.
• Encourage open dialogue between the judiciary, legislature, and administration in order to maintain balance and limit judicial overreach.

Conclusion

• Judicial review is a crucial tool for preserving democracy, constitutional supremacy, and citizens' rights.
• While the judiciary must not go beyond its authority, it is occasionally important to intervene to guarantee that the constitutional system is respected, particularly in extreme examples of executive or legislative abuse of power.

Practice Questions: Evaluate the role played by judicial activism in achieving the ideals of democracy.