Balancing The Scales: Rethinking Judicial Review and Activism in the Indian Democracy
- NLR Journal
- Jan 18
- 2 min read
Abstract
This article examines the delicate balance between judicial review and judicial activism as it operates within the Indian democratic context and emphasizes the need for either of the two to give way to the other in respect to a balance between fidelity to the constitution and the extension of the role of judges. Judicial review, as enshrined under Articles 32, 226, 227, 141 and 142 of the Constitution, is an important check whereby the court is able to keep state action in a constitutional space. While judicial activism occurs when there it is determined that in the absence of legislative and/or executive action, rights are not being protected thus enabling the court to promote social justice. In landmark cases like Maneka Gandhi v. Union of India, Vishaka v. State of Rajasthan, and Common Cause v. Union of India, the courts have significantly expanded the rights captured under Article 21 covering a right to dignity, livelihood, privacy, health and a clean and healthy environment, ultimately making the Constitution a live organism. But this idea of judicial activism comes at a cost, namely; the threat of judicial overreach, the lack of mechanisms of accountability, and the restricting of public expressions and explanations by way of contempt for the courts already adverse impact on the idea of democratic openness. It is our claim that a healthy democracy requires cooperation, not competition, between the judiciary and legislature with the accountability of acting as an important safeguard and useful agent at every milieu of power. The evolving concepts of law in respect of all of the constitutional tools that judges have to work with in a constitutional democracy need to remain mindful of the limits imposed on them by the Constitution itself, so that individual rights are secured while at the same time respecting the independent institutional role of the judiciary and any other institution in respect of the relationship of legitimacy.
[1] II Year LLM Student at Chennai Dr Ambedkar Government Law College, Pudupakkam.
[2] II Year LLM Student at Hindustan Institute of Technology and Science.
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