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  • Category: Indian Law

    Judicial review and judicial activism


    Have a query about juducial review and judicial activism? Looking out for detailed information here? Our experts have provided responses for your query along with indfromation regarding judicial restraint and judiucial overreach.

    What is judicial review and how this concept come into existence. Is it right that while excercising the power of judicial review judge can make law. If not then what is the limitation of judge while decising any question in issue can it give Direction to legislature. What is judicial activist? Also I want to know the concept of judicial restraint and judicial overreach.
  • Answers

    6 Answers found.
  • Judiciary is supposed to give its verdict based on the rules and regulations under the umbrella of the constitution. If they find that some provisions and rules being followed by the Govt or any agency are not in line with the constitutional validities then the courts have a right to void them and dismiss them. It is the duty of the court to be guided by the constitution rather than the provisions being enacted by Govt. This action by the courts is known as judicial review and it is the powers of the court as provided under the constitution to them.

    On the other hand judicial activism, though a rare phenomenon, means the actions of some of the judges which are in excess of the powers allotted to them. A judge has to follow the constitutional principles in deciding a case or resolving a dispute. Now judge is also a human being and sometimes he goes or appears to exceed his power in deciding a case and gives a verdict influenced by personal or political considerations. This is a deviation. As per constitution the verdict by judges should only be in accordance of constitutional values. They are only empowered to go to that extent.

    Though judicial review by the judges is always a welcome move but the judicial activism is seen to lie in negative territories and harmful for a healthy democracy.

    Knowledge is power.

  • Judicial review is also a type of court case, in which someone challenges the lawfulness of a government decision. We see many cases in various courts in which the government decisions are challenged. One such case is the recent case between the AP State government and the State Election Officer, in which the court has dismissed the actions of the State government.
    The illegality, procedural unfairness, and irrationality are the three main grounds of Judicial review.
    A decision of the government can be rejected on the ground of illegality if the government representative who is responsible for doing it is not having the legal power to make such decisions. A decision can be cancelled in cases where the procedure to be followed is not followed properly.
    A decision of the government can be quashed by the court on the ground of irrationality If the court decides that no reasonable person, acting reasonably, could have made this decision.
    A higher court can review the decision of a lower court which will also come under judicial review.
    This power of the judiciary is useful to supervise the legislative and executive branches in case they go beyond their authority.
    There is only a little difference between review and activism. In Judicial review, the court will decide if the law/act is in line with the constitution or not. In judicial activism, the behavioural concept of the judge concerned will also come in. The judge may go beyond the constitution based on public interest, speedy disposal of cases etc
    These two powers made the Indian Judiciary system powerful and thus they have become the custodians of the fundamental rights of the people.
    If a court acts beyond its authority and interferes in areas that are in the scope of executive and/or the legislature's mandate, that will be called Judiciary overreach.
    The limitations that are existing on the act of judiciary either by Constitution or any statue will come under judicial restraint.

    drrao
    always confident

  • This concept of judicial review came from the Constitution of India - (Article 13). The power of judicial review is developed to protect and enforce fundamental rights assented to in Part III of the Constitution. Judicial activism plays a more active role by the judiciary to deliver social justice.

    Through judicial activism, the laws made by the legislature as well as the executive's actions are examined and amendments are suggested to make them more consistent with the constitutional. In India, judicial activism was established through the introduction of public interest litigation. In matters of great public interest within the limits of expertise and powers, the judiciary has decided the cases by self-knowledge or public interest litigation.
    The difference between judicial activism and judicial overreach is very narrow. In simple terms, when judicial activism crosses its boundaries and becomes judicial adventurism it is known as judicial overreach. When the judiciary abdicates the powers given to it, it can interfere with the proper functioning of the legislative or executive organs of the government.

    Judicial review means making decisions about conformity with the constitution of a law and act. On the other hand, judicial activism is concerned with a behavioral concept of a judge. It is mainly based on public interest, speedy disposal of cases etc. With the power of judicial review, courts act as protectors of fundamental rights. Thus, the power of judicial review is recognized as part of the basic constitution of India.

    Judicial activism helps to make democracy even stronger. In its absence, democracy is not truly democracy. In addition, judicial activism takes into account the ideals of democracy.

    Swati Sharma

    Keep your Face to the SunShine

  • Judicial Activism is the power of Judicial to enforce what is good for society and all the citizens of India, while Judicial Review means that it is the power of the judiciary to determine the existence of a law or an order. Legislature and Executive are the two acts of Indian Judiciary and we can see that these are the basic structure of the Independent Judiciary like the case of Indira Gandhi versus the Rajnarain case. Judicial Review is divided into 3 categories.
    1. Legislative Actions Reviews.
    2. Judicial Decisions Reviews.
    3. Administrative Action Reviews.
    The judges must balance the power for maintaining human rights, fundamental rights, life and liberty of the citizens. The legislative actions power is to make sure that law is passed in line with the constitution and also in part 3 of the constitution like the principle of reading down. The principle of reading down is to make sure that it is considered as illegal or unconstitutional.
    Judicial decisions review means that when a statute is challenged in the ground and which is passed by the legislature without any rights or authority. It is an important decision of the court to decide whether the law passed by the legislature is good or not. In our country, no legislature has the power to disobey the decision given by the courts.
    Administration action review means that it has the discipline over the agencies of the government while giving more powers to it. The judicial actions can be viewed in the cases like Golaknath, Banks Nationalization case, Minerva Mills case etc. The courts have wide powers and these have to be exercised with great control.

    "Earning knowledge is by sharing it with ISC and we will rectify our mistakes."

  • Judicial Review is a kind of court proceeding where a judge reviews a decision or an action compiled by the law. Judicial Review would examine the validity of such a decision incorporated in the law considering the pros and cons as a result of its introduction.
    There are alternative remedies such as appealing against the decision in high court.
    Here a few examples are quoted falling within the range of judicial review and these are given below -
    1) Decision of the regulatory bodies.
    2) Decision relating to prisoners right.
    3) Certain decision of immigration authorities and the immigrated and asylum chamber.
    4) Decision taken up by the local authorities in exercise of their duties to extend various welfare benifits for the upliftment of the society.
    Now let us understand what judicial activism relate to. Judicial Activism is closely related to constitutional interpretation, construction and separation of power. It is just opposite to judicial restraint. Judges should be more bold while taking decision in their related cases. The following points should be considered while analysing the Judicial Activism-
    1) Law should be interpreted and applied based upon the ongoing charges in conditions and values.
    2) With the time, the values and beliefs of the society changes and the court should deliver judgement considering these parameters.
    While talking judicial activism, judges should use their powers to correct the injustices especially when other departments of the government don't take the laws in the right frame.
    Judicial restraint signifies the limiting power of judges to strike down a law. In the judicial restraint, courts generally defer to interpretation of the constitution or any other constitutional body.


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