CONTENTS

Abstract…………………………………………… 1

Introduction………………………………………….. 1
1. Introduction of judiciary............................. 1

Judicial review……………………………………………. 2
1. Meaning…………………………………………………………….. 2
2. Basic features of judicial review……………………………….. 2
3. Prominent cases………………………………………………………. 4
4. Judicial review legislative in legislative enactment…………. 4
5. Judicial review in president proclamation………………………. 5

Judicial activism…………………………………………………………. 5
1. Introduction and meaning……………………………………………………… 5
2. Prominent cases of judicial activism………………………………………. 6

Critical analysis……………………………………………………………….. 7

Conclusion ……………………………………………………………………….. 8
1.

ABSTRACT
Judiciary has an important role in reviewing legislation. Judiciary review is one of the tool of
judiciary scrutiny. In the following discussion we are going to discuss the role of judiciary
scrutiny, studying judicial review. How judicial review helps in solving cases and helping in
strengthening of the constitution. We will study about judicial activism. How judicial activism
works when executive failed in bringing change? We will see when judicial activism crosses its
limit and becomes judicial over reach. There are some prominent cases of judicial review and
judicial activism.

In the end critical analyses is important to understand the concept in both ways, whether it is
good or not, if it is good then upto which limit. One thing judiciary must keep in mind is that
while going overboard to do justice to common man it must not over step the limitation
prescribbed by the constitution.

INTRODUCTION
In the system of government, judiciary place an important role in the quality of governance.
With the idea of constitution based on the principle of limited and responsible government, and
independent judiciary has become the sine-quo-non (factor or something essential of
democracy). If the judiciary has given real independence and full freedom in making legislation
it makes for good governance and prevent exploitation of the poor and weaker section of the
society. In a federal government, two set of government union and state, dispute between
state and union or between different state must be resolved by independent judiciary. Judiciary
plays vital role in a successful democracy. To understand various power of judiciary we must go
through a good reading.

INTRODUCTION OF JUDICIARY
The supreme court of india is the successor of the federal court of india, which was created by
the government of india act 1935. The supreme court is the highest court of appeal of the
republic with significant power and function to exercise and obligation to perform in its
jurisdiction. It is interpreter of the constitution and the laws, cuspodian of fundamental rights,
the guardian of provincian autonomy and advisor to the president. It helps not only original,
advisory jurisdication, but also has the power of judicial review, In the following discussion we
are going to discuss about the judicial review and judicial activism. Supreme court has many
misceillaneous power known as judicial activism. Article 124 of the constitution establishes the
supreme court of india as the highest court of india republic. Supreme court of india has power
of original juridication, appellate juridication, advisory juridication. But our topic is role of the
judiciary scruitny in reviewing legislation in india. So our focus is more on our power like
juridication review, juridication activism, so our main focus in disscussing juridication review
and juridication activism whether it is good or bad, incident when judicial review is helpful and
incident when it is not helpful. Same is the case with judicial activism. Now let us first discuss
judicial review.

JUDICIAL REVIEW
The constution of india is the supreme law of the land. The supreme court of india has the
supreme responsibility of interpreting and protecting it. It can also act as the guardian
protector of the fundamental right. Of the purpose, supreme court exercise the power of
dteterminig the the constitutional validity of all laws.

MEANING
Judicial review refers to the power of judiciary interpret the constitution and to declare any
such law and order of the legislature and executive void if it finds them in conflict the
constitution of india. Judicial review means review by the court to investigate the constitutional
validity of legislative enactment or executive actions.

1). The court reviews the laws and the rules of the legislature and executive in cases that come
before them , in litigation cases.

2). The court determine the constitutional validity of the laws and rules of the government .

3). The cort reject the law or any of its part which is found to be unconstitutional or against
constitutional.

BASIC FEATURES OF JUDICIAL REVIEW

1). Judicial review of power is used by both supreme court and high court.

2). Judicial can be conducted in respect of all central and state laws the order and ordinances of
the executives and constitutional amendments.

3). Judicial review can’t be conducted in respect of the laws in corporated in the 9 th schedule of
the constitution.

4). Supreme court doesn’t use the power of judicial review of its own. It can used it only when
any law or rule is challenged before it.

5). Judicial review in india is governed by the principle “procedure established by law”. Under it
court conduct one test, whether the law has been made in accordance with the power granted
by the constitutional to law making body and follows the prescribed procedure or not.

We have discussed meaning and some basic features, now look at some articles from where
judicial review gets power.

1). Article 13 (2) specifically declares that every law in force at the commencement of this
Constitution, and every subsequent law, which is inconsistent with the Fundamental Rights
shall be void.

2). Article 32 empowers the Supreme Court to invalidate all such laws to extent they violate
Fundamental Rights.

3). Under Articles 131-136, the basic function of the courts is to adjudicate disputes between
individuals, between individuals and the State, between the State and the Union, and while so
adjudicating, the courts may be required to interpret the provisions of the Constitution and the
laws. And, the interpretation given by the Supreme Court becomes the law honoured by all
courts of the land.

4). Article 226 constitutes the High Courts as the protector and guarantor of Fundamental
Rights.

5). Article 245 provides the powers of both the Parliament and the State Legislatures subject to
the Provision of the Constitution. Article 246 (3) expressly provides that in the State list, the
State legislatures have exclusive powers. In context of Concurrent List or of those entries in the
State List for which one or more States would have requested the Parliament to make laws;
Article 251 and 254 declare that in case of inconsistency between the Union and the State laws,
the State law shall be void. The constitutional validity of law can be challenged in India on the
ground that the subject matter of the legislation: (a) is not within the competence of the
legislature which has passed it; (b) is repugnant to the provisions of the Constitution; or (C) it
infringes one of the Fundamental Rights.

6). In view of Article 372 (1), no pre-constitutional law, which is inconsistent with it can
continue to be valid after the commencement of the Constitution.

There are some few famous cases in the history of Indian judiciary. Because of them we can say
that these cases have strengthened are democracy.

1. GOLAKNATH VS STATE OF PUNJAB

This was a 1967 Indian Supreme court case, in which the court rule that parliament couldn’t
curtail any of the fundamental right in the constitution.

In this the judgement reversed the Supreme court’s earlier decision which had upheld
parliament’s power to amend all parts of the constitution, including Part III related to the
fundamental rights. The judgement left the parliament with no power to curtail
fundamental right majority of the judges didn’t agree with the view that Article 368 contain
“POWER AND PROCEDURE” to amend, instead believed that the text of Article 368 only
explained the procedure to amend the constitution. According to article 13(2) the
parliament couldn’t make any law that abridges the fundamental right contain in path third
of the constitution.

2. KESAVANANDU BHARTI VS STATE OF KERALA

This was another famous and landmark case in the history of Indian Judiciary. According to
the Hindu newspaper’s article ‘the case that saved Indian democracy’. On april 24, 1973
chief justice sikri and other 12 judges of supreme court gave verdict. Article 368 didn’t
contain any limitation on the power of parliament to amend any part of the constitution.
There was nothing that prevented parliament from taking citizen right or his religious
freedom. But 703 pages judgment reveled a sharply divided court and with 7:6 ratio, it is
held that parliament could amend any part of the constitution so long it didn’t alter or
amend “the basic structure or essential features of the constitution”. This was a beautiful
verdict given by supreme court that strengthened are constitution more.

Judicial review in legislative enactment

There are many cases when legislative enactment were held in valid like Champakam Borai
Rajan’s case the supreme court held that the order of the state government fixing
perportionate scale for different communities for the admission to medical college was
unconstitutional in Bihar Land zamindari case the patna high court declare that bihar land
reform act 1950 was unconstitutional. Lower case like kerala AGRAIN reform act, 1961,
madras land reform act 1961 and the Rajasthan tenancy act 1965 were held
unconstitutional.

Judicial review in President proclamation

1970, the supreme court declared the bank nationalization ordimance was unconstitutional.
Another case it struck down as president proclamation, in which it deregonized ruler’s of
former princely states for the purpose of discontinuing their privy purses and priviledges.

judicial review on national judicial appointment

commission or 1999 amend
as we know that the appointment the judges were done by collegium system. There is no
role of executive and people in appointing judges of supreme court and high court. So
national national judicial appointment commission was purposed by body which would
have been responsible for the appointment and transfer of judges to the higher judiciary in
India. The commission was established under 1999 Amend Act, 2014 passed by Lok sabha
and Rajya sabha. NJAC would replace the colleguin system for appointment of judges.
However on 16 oct 2015, the constitution banch of supreme court by 4:1 majority declared
NJAC unconstitutional. Some reason for this verdict was given under Arctile 124A which
didn’t provide and adequate representation to the judicial component in the NJAC clause
(A) and (B) of Article 124A (1) are in insufficient to preserve the primacy of judiciary in the
matter of selection and appointment of judges.

Judicial activism
According to justice to VSR KRISHNA AYER,judicial activism is a device to accomplish the
cherished goal of social justice. He said “after all, social justice is achieved not by
lawlessness process, but legally turned affirmative action, activist justicing and benign
interpretation within the parameter of Corpus Juris “.
Under Article 32(2) of the constitution of India the Supreme court in clear terms supreme
court has the power to issue whatever direction, order to writ that may be appropriate in a
given case for the purpose of enforcement of a fundamental right.

Under an article on judicial activism in the Hindu Newspaper’s by BP Jeevan Reddy.

According to him constitution has created three state organs legislature, executive and the
judiciary. However executive has failed in large measure’s to implement was. Under such
circumstances when court take direction then it is called judicial activism in a pyorative.

According to him in many occasion court might have over stepped their limit. For example,
order directing the construction of bridges, order seeking a lay timetable for all running
trains. If one must took at the generality of the future and not draw conclusion from a few
wrong example, judicial activism has done great service to society.

promiment cases of judicial activism

1). Deforms in cricket- in a recent time the supreme court set up Mudgal
committee and Lodha camel to investigate the betting charges and suggest to reforms.

BCCI VS SUPREME COURT

2). SIT on BLACK MONEY- the supreme court order the UPA government to set
up and SIT to prove black money.

3). Supreme court order government to set up a bad loan panel.

4). Many examples like SC order Center to create new policy to handle drought the target
Maharashtra’s former.

So from the above discussion we can say that judicial activism made important role in
making nation strong, rodering and advising government about its jurisdiction. But every
good thing has a bad side also similarly with judiciary, if judicial activism croses its limit it
becomes judicial overreach.

Some prominent cases of judicial over reach-

In position of patriotism in National Anthem case

1). The supreme court on December 2016 passed its judgement in the case of Shayam
Narayan Chouksy vs Union of India. All cinema hall in India shall play the National Anthem
before the film start’s. All members had to stand up for the National Anthem. Door must be
closed.

2). Another example of censorship in jolly llb 2 movie.

3). Cancellation of telecom license’s in 2G. the supreme court order to cancel 122 telecom
license’s and spectrum allocated to 8 companies.

Critical analysis
Now from the above discussion and examples we conclude that judicial overreach-

1). Can destroy the spirit of the constitution and the democracy on the separation of the
power between the organ’s.

2). It creates conflict between legislative and judicial system.

3). On one hand judicial activism helps in strengthening the people’s faith in the judiciary,
on the other hand judiciary over reach destroy’s it.

4). It reduces the trust of people in public institution which can be dangerous for
democracy.

Former Solicitor General of India, Mr Dipankar P Gupta, also wrote,”there is a real danger
that the activism of the may aggravate the activism of the authorities. Today, in convenient
decision are left by the executive for the court to take”.

(Hindustan times, june 15, 2007)

Judicial activism can be criticized on various aspects. For example judge who is issuing
guidelines for foreign exchange may not lay proper once if he don’t have economical
knowledge it violate the concept of separation of power. On one hand where in India drugs
and pharamaceueticuls lted vs Workman. The supreme court states that “the court cannot
arrogate to itself the power of executive or legislature. There is broad separation of power
under the constitution of India and judiciary, must know its limit”.

(2007) 1SSC 408

Judicial review in form of activism has surpassed the constutionality and legitimacy. This
approach only confused original power but also put india towards a judicial supremacy
much away from its constitutional supremacy

Conclusion
The size of power of judicial review has created controversies many times. Between Court ,
executive and the legislature. Afforts have been made in India to curtail the scope of judicial
review in some constitutional areas. Law minister in the central government once stated in
parliament that the courts had, through their exercise of power of judicial review, retarded
the process of socio-economic development of the country, and therefore he justified
certain restriction and the power of court’s to declare law’s and constitutional.

But inspite of this, the doctrine of judicial review has a vibrancy of its own and has overbeen
declared as the basic future of constitution. The power of judicial review is recognized as
part of the basic structure of the Indian constitution. Judicial review id developed on the
ideological foundation of constitutional supremacy.

Judicial activism is not an aberration. It is an essential aspects of the dynamics of

constitutional port. It is a counter-majoritarian check a democracy. Judicial activism doesn’t
mean rule governance by judiciary. Judicial activism must function under the limit of judicial
process.

Thus the paper conclusively propose that there is dire need to reconsider the concept of
judicial review and judicial activism.