In this post, we shall compare Judicial Review vs Judicial Activism vs Judicial Overreach. Judicial Review, Judicial Activism, and Judicial Overreach are terms that come often in the news. What do these mean? What is the difference between them? How are these terms significant to the legal system of the country? Read further to understand better.
“Judicial Review,” “Judicial Activism,” and “Judicial Overreach” are concepts that pertain to the role and behavior of the judiciary in a legal and political system. These terms are often used in discussions about the extent and limits of judicial power.
Let’s find out the difference between Judicial Review vs Judicial Activism vs Judicial Overreach.
Judicial Review vs Judicial Activism vs Judicial Overreach
- Definition: Judicial review is the power of a court, typically a constitutional court, to review the actions, laws, and policies of the legislative and executive branches of government to ensure they conform with the Constitution.
- Purpose: The primary purpose of judicial review is to uphold the rule of law and protect the Constitution. It allows courts to strike down laws or government actions that are unconstitutional, ensuring that government actions remain within the bounds of the Constitution.
- Definition: Judicial activism occurs when a court, typically through its rulings, takes an active and assertive role in shaping social, economic, or political policies. Judges who engage in judicial activism often interpret the Constitution and laws broadly and flexibly to achieve what they consider just outcomes.
- Purpose: Judicial activism is often driven by the belief that the judiciary should play a proactive role in addressing societal issues and injustices. Proponents argue that it can lead to progressive and more equitable outcomes.
- Definition: Judicial overreach occurs when a court goes beyond its constitutional mandate and interferes excessively in the domains of the legislative or executive branches. It often involves decisions that are seen as overly intrusive or beyond the scope of judicial authority.
- Purpose: Judicial overreach is generally not a purposeful or deliberate action; instead, it is considered a misuse or abuse of judicial power. It may result from judges making decisions that are highly controversial or seen as exceeding their authority.
Though the legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary reviews the validity of laws passed by the legislature.
- From where does the power of Judicial Review come: From the Constitution of India itself (Article 13).
- The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
- 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 fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
- Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India.
- Examples of Judicial Review: The striking down of Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.
Judicial activism denotes a more active role taken by the Judiciary to dispense social justice. When we speak of Judicial Activism, we point fingers at the invented mechanisms that have no constitutional backing (e.g.: Suo moto (on its own) cases, Public Interest Litigation (PIL), new doctrines, etc.).
- From where does the power of Judicial Activism come from: Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America.
- Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
- Although the earlier instances of Judicial Activism were connected with enforcing Fundamental Rights, nowadays, the Judiciary has started interfering in governance issues as well.
- Examples of Judicial Activism: Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, 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, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc.
The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
- From where does the power of Judicial Overreach come from: Nowhere. This is undesirable in any democracy.
- Judicial Overreach destroys the spirit of separation of powers.
- Examples of Judicial Overreach: What makes any action activism or overreach is based upon the perspective of individuals. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court, etc. are considered as Judicial Overreach.
It’s important to note that the interpretation and application of these concepts can vary depending on the legal and political context of a particular country. What one person may see as judicial activism, another may view as a necessary exercise of judicial review to protect constitutional rights.
Similarly, the perception of judicial overreach can be subjective and contentious. Balancing the principles of judicial review, activism, and the prevention of overreach is an ongoing debate in legal and political discourse worldwide.