It is the ultimate power of the Judiciary to determine the validity of a law or an order, which may be described as the powers of “judicial review”. It tests the constitutionality of the legislative acts and executive orders.

The constitutional provision of the Judicial review:

Article 13: It held that laws made by the Parliament after the commencement of the Constitution, if they infringe on fundamental rights, shall be declared null and void by the Court.

Article 32 provides the right to constitutional remedies, which means that a person has the right to move to the Supreme Court to get his fundamental rights protected.

Article 226 empowers the High Court to issue directions, orders or writs in the nature of habeas corpus, mandamus, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or any other purpose.

Purpose of the Judicial review:

• Supremacy of the Constitution: With the power of judicial review, the Supreme Court and High Court invalidate the laws that are ultra vires to the Constitution. Thus, it maintains the supremacy of the Constitution.
• Federal equilibrium: Judicial review helps maintain the federal balance in the polity of India as it restricts the encroachment of the Centre on the state
• Fundamental rights protection: Judicial review helps in the protection of the fundamental rights of the people by striking down the laws and executive orders that contradict the fundamental rights guaranteed by the Supreme Court.
• Maintains the rule of law: It upholds the principle that executive decisions are taken in accordance with the rule of law.

Feature of the Judicial review:

• Two principles that are followed for the judicial review are ‘due process of the law’ and ‘procedures established by laws. The Indian Constitution provides for the ‘procedure established by law’ and not ‘due process of law’ as in the USA. The Supreme Court of India follows the ‘procedure established by law while determining the constitutionality of a law. It examines whether the law has been validly enacted. It is not expected to go into its reasonability, suitability on policy implications, etc., as followed under ‘due process of law’. However, after the Menaka Gandh i case, due process of law has been accepted by the Supreme Court.
• It can be applied against the law when it is challenged before the Court. It can also be said that Sun Moto has not applied for Judicial review.

Benefits of the judicial review

Protection of the Constitution:

• Kesavananda Bharati v. State of Kerala (1973): In this case, the Supreme Court gave the doctrine of basic structure. In this aspect, the Parliament cannot amend the Constitution to destroy its basic structure or essential features of the Constitution. This landmark judgment played an important role in protecting the integrity of and preventing excessive amendments that could undermine its fundamental principles.
• Menaka Gandhi case: In this case, the Supreme Court expanded the scope of Article 21 (protection of life and personal liberty). In this judgement, the Supreme Court held that the right to personal liberty under Article 21 includes the right to travel abroad. In this judgement, the Supreme Court recognised the due process of law. Thus, the law must be fair, just and reasonable. Yhis will ensure that individuals’ rights are protected against arbitrary state action.
• In Minerva Mills’ case, the Supreme Court struck down section 4 of the 42nd Amendment Act, which would destroy the harmony of the Indian Constitution.

Protection of the Fundamental Rights:

It plays an important role in the protection of fundamental rights: Article 32 confers power on the Supreme Court to issue any order or writ for the enforcement of any of the fundamental rights.

• Shreya Singhal case: The Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 as it violates the fundamental rights of expression. It held that the restriction imposed is beyond the scope of permissible restrictions under Article 19(2) of the Indian Constitution.
• Nalsa Vs Union of India case: In this case, the Supreme Court gave preference to the dignity of the individual who falls outside the male/female gender binary. It gave legal recognition to “third gender” persons.
• Puttaswamy case: In this landmark case, the Supreme Court of India holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.
• Shayara Bano v. Union of India (2017): In this case, it declared the practice of instant triple talaq (Talaq-e-biddat) unconstitutional and thus violated fundamental rights.
• Navtej Singh Johar v. Union of India (2018): In this landmark judgment, the Supreme Court decriminalised consensual same-sex relations by striking down Section 377 of the Indian Penal Code.

Maintaining the Federal balance:

The Supreme Court interprets the constitutional division of the power between the Centre and states and maintains the division of power between federal units of the Centre and states.

1. Delhi Government Vs LG case: In this case, the Supreme Court emphasised that control over administrative services – except those related to public order, land and Police– in the national capital belonged to the Government of Delhi.
   1. SR Bommai case: The Supreme Court held that federalism is the basic structure of the Constitution.

Judicial activism:

Judicial activism is the use of the power of judicial review to stuck down the legislative act that is against the Constitutional principle. With this Supreme Court  plays a more proactive role in protecting the fundamental rights of the people. With this, the Supreme Court can strike the law, which is against the constitutional principle.

Some constitutional principles that provide the basis of Judicial activism:

Article 136: The Supreme Court has the power to grant special leave to appeal from any judgement, determination, decree, sentence or order. The Supreme Court exercises its special power in those cases where gross injustice happens, or substantial questions of law are involved. It can be exercised to decide the case on justice, equity and good conscience.

Article 142: it empowers the Supreme Court to pass a suitable decree or order for doing complete justice in any pending matter before it. Despite the fact that the law-making power in India lies primarily with the Parliament only, the Supreme Court is able to legislate under Article 142 of the Indian Constitution. This provision is responsible for the judicial legislation in India.

The Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan acknowledged the importance of Article 142 of the Indian Constitution. It said that the Court has power under Article 142 to issue directions and guidelines for implementing and protecting fundamental rights in the absence of any enactment.

Example of the Judicial activism:

Oleum gas leak case: The Court said that hazardous industries have a  duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken. Thus, the enterprise is absolutely liable to compensate for such harm.

Narmada Bachao Andolan case: The rights of relief and rehabilitation have been ensured by the Supreme Court in this case. Construction only up to 90 meters was allowed as per the clearance given by the relief and the realisation subgroup.

M. C. Mehta vs Kamal Nath case:  Pollution is a civil wrong. Thus, any person guilty of causing pollution has to pay compensation for the restoration of the environment and ecology. Under the Polluter Pays Principle, polluters have to bear the financial burden of the pollution, and it should not be incidental to the taxpayer.

Eco-sensitive zones: The Supreme Court has directed that every protected forest, national park and wildlife sanctuary should have a mandatory eco-sensitive zone. It should be a minimum of one km starting from their demarcated boundaries.

Judicial overreach

In some cases, there have been instances of judicial intervention in executive and legislative areas. This is called judicial overreach. It has been criticised as against the separation of power. It can lead to a decrease in the public trust in the Judiciary.

Example of the Judicial overreach:

• Ban on the sale of liquor within 500 metres of national or state highways by the Supreme Court is criticised as judicial overreach.
• Ordering the Interlinking of the River by the Supreme Court has been criticised as interfering in the domain of the executive and legislature.
• The striking down of NJAC by the Supreme Court has been criticised as not ensuring accountability of the Judiciary.

Judicial restraints:

• Judicial restraint is considered the opposite of judicial activism. In judicial restraint, judges are restricted from interfering with democratic politics.
• In judicial restraint, the role of judges should be limited, and their job must be to interpret the laws. In other words, the Court should not unnecessarily interfere with the organs of the Government.

Significance of Judicial restraint:

While judicial activism is essential, so is judicial restraint.

• Judicial restraint helps preserve the balance among the three branches of Government: the Judiciary, legislative, and executive.
  • It upholds the laws established by the Government in the legislature and respects the separation of different organs of the Government.
  • It allows courts to focus on delivering their duties. It saves time, as there have been cases pending before the Court for half a century.
  • Courts practising restraint allow the legislature and the executive to carry out their duties without undue interference and refrain.
  • It encourages equality among the three branches by minimising inter-branch interference by the Judiciary.

Example of the Judicial restraints:

• In the SR Bommai case, the Supreme Court restrained from examining political questions for the exercise of power under Article 356. Court said that if the courts examine the political decisions, then they would be entering the political domain and questioning the political wisdom. And this is what the Court must avoid.
• In the State of Rajasthan vs. Union of India (1977), the Supreme Court dismissed the suit, which called for a review of the imposition of the President’s rule in the states.
•  In recent cases, the Supreme Court refrained from legalising same-sex marriage, citing it as a Parliamentary role in framing the law regarding it.

Difference between Judicial activism, Judicial restraint and judicial overreach: