The Evolution of Judicial Review and Judicial Activism in India: Guardians of Constitutional Morality

Introduction

In a democracy, the judiciary plays an indispensable role as the guardian of the Constitution, upholding the rule of law and protecting fundamental rights. In India, two vital mechanisms through which the judiciary discharges its duty are Judicial Review and Judicial Activism. These concepts, while intertwined, serve distinct purposes. Judicial Review allows the courts to scrutinize laws and executive actions to ensure their constitutionality, while Judicial Activism refers to the judiciary’s proactive stance in addressing social, political, and economic issues where legislative or executive actions fall short. Together, they form the foundation of India’s judicial philosophy, evolving over time to meet the challenges of governance in a complex society.

Historical Evolution of Judicial Review in India

Origins in the Indian Constitution

The concept of Judicial Review in India was inspired by the U.S. Constitution, specifically from the landmark case of Marbury v. Madison (1803). The framers of the Indian Constitution, foreseeing the need for a robust check on legislative and executive powers, incorporated Judicial Review into the Constitution, granting the judiciary the authority to review laws passed by Parliament or actions taken by the executive.

Article 13 of the Indian Constitution lays down the foundation of Judicial Review by ensuring that any law contravening fundamental rights is void. Similarly, Article 32 empowers the Supreme Court to enforce fundamental rights through writ petitions, while Article 226 gives High Courts similar powers. Judicial Review extends not only to the interpretation of laws but also to the review of constitutional amendments under the Doctrine of Basic Structure, introduced in the Kesavananda Bharati v. State of Kerala case (1973).

Landmark Cases Shaping Judicial Review

• Shankari Prasad v. Union of India (1951): In this early case, the Supreme Court upheld the validity of the First Amendment and ruled that the power to amend the Constitution under Article 368 included the power to amend fundamental rights.
• Golaknath v. State of Punjab (1967): The Court ruled that Parliament could not curtail fundamental rights through constitutional amendments, leading to a tussle between the judiciary and the legislature.
• Kesavananda Bharati v. State of Kerala (1973): This case introduced the Basic Structure Doctrine, limiting Parliament’s power to amend the Constitution, ensuring that essential features like the rule of law, judicial review, and federalism remained inviolable.
• Minerva Mills v. Union of India (1980): The Court reaffirmed the Basic Structure Doctrine and struck down parts of the 42nd Amendment, reiterating the supremacy of Judicial Review as a safeguard of constitutional integrity.

Judicial Activism: A Proactive Judiciary

While Judicial Review operates within a defined legal framework, Judicial Activism arises from a more expansive interpretation of the Constitution. Judicial Activism in India emerged in response to periods of legislative inertia, executive overreach, and the failure of the government to address social injustices. The judiciary, through Public Interest Litigation (PIL) and suo moto actions, took on a more active role in safeguarding citizens’ rights and ensuring social justice.

The Emergence of Judicial Activism in India

Judicial Activism in India gained momentum during the 1980s, under the leadership of Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, who expanded the scope of the judiciary to intervene in issues like bonded labor, environmental degradation, and human rights violations. The innovation of Public Interest Litigation (PIL) allowed any public-spirited individual or organization to file cases on behalf of those whose rights were violated but lacked the means to approach the courts.

The landmark case of Hussainara Khatoon v. State of Bihar (1979) is often cited as one of the first major instances of Judicial Activism. The case, which exposed the deplorable conditions of undertrial prisoners in Bihar, highlighted the judiciary’s role in advancing social justice. Similarly, in the Vishaka v. State of Rajasthan (1997) case, the Supreme Court issued guidelines on sexual harassment at the workplace, filling a legislative vacuum that persisted until Parliament passed appropriate laws.

Key Areas of Judicial Activism

• Environmental Protection: One of the most notable areas where Judicial Activism has made an impact is in environmental law. Through a series of PILs filed by environmentalists like M.C. Mehta, the Supreme Court has taken proactive steps to protect the environment. Cases like M.C. Mehta v. Union of India (1987) on the Ganga pollution and the banning of diesel vehicles in Delhi have set precedents for environmental governance.
• Human Rights and Social Justice: The judiciary has often intervened to protect human rights in cases involving labor rights, police brutality, and the rights of marginalized communities. For example, in the Bandhua Mukti Morcha v. Union of India (1984) case, the Supreme Court addressed the issue of bonded labor, directing the government to rehabilitate laborers and implement welfare schemes.
• Right to Privacy: In the Justice K.S. Puttaswamy v. Union of India (2017) case, the Supreme Court declared the right to privacy as a fundamental right under Article 21, expanding the horizon of individual freedoms and setting a precedent in the digital age.

Benefits and Criticism of Judicial Activism

Benefits:

• Safeguarding Rights: Judicial Activism has ensured that the rights of citizens, especially marginalized sections, are protected, even in the absence of adequate legislative measures.
• Checks and Balances: Activism acts as a check on arbitrary executive actions and legislative excesses, maintaining the balance of power within the government.
• Justice for the Poor: PILs have democratized access to the judiciary, allowing the poor and disadvantaged to seek justice without the burden of litigation costs.

Criticism:

• Judicial Overreach: Critics argue that Judicial Activism often borders on judicial overreach, where the judiciary encroaches upon the functions of the executive and legislature, violating the doctrine of separation of powers.
• Lack of Accountability: Since judges are not elected and their decisions cannot be easily challenged, Judicial Activism sometimes leads to accusations of unaccountable power.
• Policy-making vs. Adjudication: Critics contend that the judiciary should stick to adjudication and not involve itself in policy-making, which is the domain of the legislature and the executive.

Judicial Review vs. Judicial Activism: A Comparative Analysis

While both Judicial Review and Judicial Activism serve as instruments of constitutional governance, they differ significantly in scope and purpose. Judicial Review is a more restrained and legally defined process of scrutinizing laws and executive actions for their constitutionality. In contrast, Judicial Activism involves a broader, more interventionist approach where the judiciary steps in to correct social wrongs or fill legislative gaps.

Judicial Review has been central to the Indian judiciary’s ability to maintain the Basic Structure Doctrine, ensuring that amendments do not violate core constitutional principles. Judicial Activism, on the other hand, has expanded the role of the judiciary to address evolving social and political challenges, from protecting the environment to advancing human rights.

Conclusion: Balancing Judicial Activism and Restraint

The judiciary in India, through both Judicial Review and Judicial Activism, has acted as the sentinel of the Constitution, ensuring that governance aligns with constitutional morality. Judicial Review, with its roots in constitutionalism, ensures that the rule of law prevails over arbitrariness and majoritarianism. Meanwhile, Judicial Activism, though not without criticism, has been instrumental in bringing about social change, particularly in areas where legislative and executive actions have faltered.

The challenge going forward is for the judiciary to strike a balance between activism and restraint. While activism may be necessary to address social and constitutional wrongs, it must not result in the judiciary overstepping its role. A careful balance is crucial to maintaining the integrity of India’s democratic structure, ensuring that the judiciary, executive, and legislature function within their constitutionally assigned domains. Ultimately, the goal should be to uphold justice and protect the Constitution, while respecting the boundaries of governance.