QUES . Highlight the major differences between judicial review and judicial activism. Do you agree that the tilt towards judicial activism has become far more pronounced in the recent past? UPSC IES/ISS EXAM 2019 General Studies. 200 Words. 5 Marks
HINTS:
What is Judicial Review?
Judicial review refers to the power of the judiciary to review the constitutionality of laws, executive actions, and government policies.
It involves the interpretation and application of the constitution to determine if a particular law or action is in accordance with the principles and provisions laid down in the constitution.
Judicial review allows the judiciary to act as a check on the other branches of government, ensuring that they do not exceed their constitutional authority.
Must read: Difference between judicial activism and judicial overreach
What is Judicial Activism?
Judicial activism refers to the tendency of judges to interpret laws and the constitution in a manner that goes beyond the original intent of the framers or the plain meaning of the text.
It involves an active and interventionist role by the judiciary in shaping public policy and addressing social issues.
Must read: Judicial Activism – a critical appraisal
Judicial activists are more likely to make decisions based on personal beliefs and values, rather than strictly adhering to the text and intent of the law.
What is the difference between Judicial Review and Judicial Activism
Scope:
Judicial review focuses on the constitutionality of laws and actions. It ensures alignment with the constitution, focusing on preserving the rule of law and protecting individual rights.
Judicial activism goes beyond constitutionality and addresses broader social and policy issues. Thus, it is policy-oriented, aimed at shaping public policy and advancing justice, often addressing societal issues and promoting equitable outcomes.
Must read: “Constitutionally guaranteed judicial independence is a prerequisite of democracy.”
Approach:
Judicial review involves an objective interpretation and application of the constitution. It relies on established legal precedents and a strict textual approach to the constitution.
Judicial activism involves a subjective interpretation that may be influenced by personal beliefs and values. Involves expansive interpretations and a policy-driven approach that may go beyond the strict text of the law.
Must read: Parliamentary control over administration is no substitute for judicial control
Role of the Judiciary:
Judicial review acts as a check on the other branches of government.
Judicial activism involves an active and interventionist role in shaping public policy.
Must read: Collegium System – Definition, Advantages and Disadvantages
Intent:
Judicial review aims to uphold the constitution and prevent the abuse of power. It is grounded in constitutional adjudication, serving as a check on government powers to preserve the constitutional framework.
Judicial activism aims to bring about social change and address perceived injustices. It is often invoked in response to pressing societal issues, seeking to address injustices and promote change.
Must read: Writ jurisdictions of the Supreme Court and High Court
Legal Precedents:
Judicial review relies on legal precedents and established interpretations of the constitution.
Judicial activism may involve judges departing from or creatively interpreting legal precedents to achieve policy objectives.
Must read: Supreme Court as the guardian of the Indian Constitution
Public Perception:
Judicial review is generally seen as a necessary function of the judiciary. While subject to debate, generally less controversial than judicial activism.
Judicial activism may be seen as overstepping judicial boundaries. Frequently generates controversy, with critics arguing that it can blur the separation of powers and lead to judges making policy judgments.
External link: https://nja.gov.in/Concluded_Programmes/2021-22/P-1287_PPTs/1.Judicial%20review%20-%20Activism%20and%20Overreach.pdf
