JUDICIAL REVIEW AND JUDICIAL ACTIVISM‌

The concepts of judicial review and judicial activism are closely related to each other. But, there is a difference between them. The following points bring out this difference:

1. Since about the mid-20th century, a version of judicial review has acquired the nick-name of judicial activism, especially in the USA. In India, the participants in the debate mix up judicial activism with judicial review. The former is that form of latter in which judges participate in law-making policies, i.e., not only they uphold or invalidate laws in terms of constitutional provisions, but also exercise their policy preferences in doing so.3d

2. The concept of judicial activism is inherent in judicial review, which empowers the court to uphold the constitution and declare the laws and action inconsistent with the constitution as void. Judicial activism is necessary for ensuring proper discharge of duties by other organs.3e

3. The term "judicial activism” came into currency some time in the twentieth century to describe the act of judicial legislation i.e., judges making positive law. However, there is no standard definition of the term "judicial activism”. As a whole it can be said that judicial activism stresses the importance of judicial review and a powerful judiciary in the protection and promotion of certain core rights.3f

4. The expanded concept of locus standi in connection with PIL, by judicial interpretation from time-to-time, has expanded the jurisdictional limits of the courts exercising judicial review. This expanded role has been given the title of "judicial activism” by those who are critical of this expanded role of the judiciary.3g

5. Judicial activism, as regards constitutional cases, falls under the rubric of what is commonly called judicial review, and at the broadest level, it is any occasion where a court intervenes and strikes down a piece of duly enacted legislation.3h