What is the difference between judicial review and judicial activism in india

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The key differences between judicial review and judicial activism in India are:Judicial Review:

  • It refers to the power of the Supreme Court and High Courts to examine the constitutionality of laws and actions of the executive and legislative branches.
  • It is an established and constitutionally mandated power derived from Articles 13, 32, 226 and other provisions of the Indian Constitution.
  • Its primary purpose is to uphold the supremacy of the Constitution and ensure that laws and actions do not violate constitutional provisions, particularly the Fundamental Rights.
  • Judicial review is a core function of the judiciary and is considered a part of the basic structure of the Constitution.

Judicial Activism:

  • It refers to an approach where judges go beyond just interpreting the law and actively engage in shaping policies and advancing certain values or objectives.
  • It is not explicitly mentioned in the Constitution but has evolved through the judiciary’s interpretation of its role.
  • Judicial activism involves proactive intervention by the courts to address social issues, protect rights, and fill legislative gaps.
  • It often involves a broader and more expansive interpretation of laws and constitutional provisions.
  • Mechanisms like Public Interest Litigation (PIL) and the issuance of guidelines or directives are examples of judicial activism.

In essence, judicial review is a constitutionally mandated power of the courts to review the constitutionality of laws and actions, while judicial activism is a proactive approach adopted by judges to shape policies and address societal concerns, sometimes going beyond the traditional boundaries of judicial review.Judicial review is a well-established principle, whereas judicial activism is a more controversial concept, with debates surrounding the extent to which the judiciary should intervene in policy matters traditionally reserved for the executive and legislative branches.

 

Here are some notable examples of judicial activism by the Supreme Court of India:

Kesavananda Bharati v. State of Kerala (1973)

This landmark case introduced the ‘basic structure’ doctrine, which asserts that certain fundamental features of the Constitution cannot be altered by amendments. This decision limited the Parliament’s power to amend the Constitution.

Maneka Gandhi v. Union of India (1978)

The Supreme Court expanded the interpretation of Article 21, ruling that the right to life and personal liberty includes the right to live with human dignity. This case significantly broadened the scope of fundamental rights.

Vishaka v. State of Rajasthan (1997)

In the absence of specific legislation to prevent sexual harassment at workplaces, the Supreme Court issued the Vishaka Guidelines, which laid down procedures for the protection of women from sexual harassment at work.

Hussainara Khatoon v. State of Bihar (1979)

This case highlighted the inhumane conditions of undertrial prisoners in Bihar. The Supreme Court ruled that the right to a speedy trial is a fundamental right under Article 21, leading to the release of thousands of undertrial prisoners.

MC Mehta v. Union of India (1986)

In a series of cases filed by environmental activist M.C. Mehta, the Supreme Court issued several directives to control pollution and protect the environment. Notable among these is the order to close polluting industries near the Ganges River and the directive to convert Delhi’s public transport to CNG to reduce air pollution.

Navtej Singh Johar v. Union of India (2018)

The Supreme Court decriminalized homosexuality by striking down parts of Section 377 of the Indian Penal Code, which criminalized consensual homosexual acts between adults.

Arun Gopal v. Union of India (2017)

The Supreme Court fixed timings for setting off fireworks during Diwali and banned the use of environmentally harmful fireworks, despite there being no specific legal basis for these restrictions.

National Legal Services Authority v. Union of India (2014)

The Supreme Court recognized the right to self-identify one’s gender, leading to the enactment of the Transgender Persons (Protection of Rights) Act, 2019.

Sheela Barse v. Union of India (1983)

Journalist Sheela Barse’s letter to the Supreme Court about the custodial violence faced by women prisoners was treated as a writ petition. The Court issued guidelines to improve the conditions of women prisoners.

Bandhua Mukti Morcha v. Union of India (1984)

The Supreme Court took a proactive stance against bonded labor, directing the government to identify, release, and rehabilitate bonded laborers.These examples illustrate how the Supreme Court of India has taken an activist approach in interpreting laws and the Constitution to address various social, economic, and political issues, often filling legislative gaps or prompting executive action.

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