The controversy of judicial review which at extreme points, is called judicial activism, is a concept new to India. Judicial review can be defined as the judiciary, in the exercise of its own independence, checking and cross checking the working of the other organs of the government, while trying to uphold the ideal of ‘the rule of law’. Judicial activism more reformist in character is often confused with judicial review. According to Black’s Law Dictionary, judicial activism is “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”However, due to the frequent misreading of the two terms, this article will only refer to judicial review as a proportionate mixture of the two.
Judicial review can broadly be divided into three parts:
i) When courts exercise their power to review subordinate courts and the executive. ii) When courts review the working of the legislature and check the constitutionality of their actions.
iii) When the courts assume legislative powers and go on to actually frame their own laws.
Judicial review is a concept disputed for its very purpose. It is often debated whether judicial review is good or bad for democracy, whether it has a constitutional backing or not, whether the legislature has a right to oppose it or not. It is a controversy seen world over mainly in democratic countries. Communist countries like China do not believe in judicial review but in a strong and centralized executive, with a weak judiciary limited to solving personal issues. Judicial review in general, is a term which relies on many concepts: on the independence of the judiciary, the separation and division of powers and above all, the idea of rule of law.
The Origin and Worldwide Nature of the Controversy
Although many countries all over the world have dealt with this ongoing controversy for decades, it sparked controversy in India only in the late 1970’s after the emergency. The Indian judiciary before the adrenaline booster given to it by the emergency was highly lackadaisical and unconcerned about the working of the legislature. In fact, during the emergency, the Indian judiciary was highly criticized by many countries of the world for not asserting itself. The judiciary, during these times of gross violations of the Constitution of India, did not do much but instead behaved like a puppet to the government. The doors of the courts were closed on the faces of those challenging the thrusting aside of even basic fundamental rights like the right to life. In the ADM Jabalpur case, the Supreme Court, in a widely criticized decision, held that a writ of habeas corpus could not be issued during the emergency because the right to life stood suspended. After the shaking up of the emergency, the judiciary finally realized its importance as the guardian of the Constitution and of the citizens of India. The Supreme Court, under a plethora of Chief Justices like Bhagwati,J. and V. Krishna Iyer,J. took upon itself the role of reading not only the mere words of the Constitution, but the deeper meaning within. Numerous cases arose during this time in which the judgements laid out a new path to be taken by the Indian judiciary. India is not alone in the world in this controversy. Common law countries like Britain have had their entire laws framed by judges at the Inns of Court. Judicial precedent has the power and authority of legislation in all of Britain and even its legislature does not deny this role of the judiciary in the building of the rule of law. In the US, it is believed that the courts should stay within the purview of judicial management and not stray into the legislative arena. The courts there believe that...