Justice as a fine balance: Judicial Activism, Judicial Review

URL: Judiciary must uphold rights of citizens without sacrificing sobriety | The Indian Express     Published in The Indian Express Dated May 15,2021

     The Article talks about the delicate balance between three organs of the government: Executive, Legislature and Judiciary and their defined role as per the Constitution. It talks about Judicial review; role of Judiciary and emphasized the balance and restrain to be maintained by Judiciary while exercising such power. Below are some observations made in the Article

“The fundamental principles of the power of judicial review over administrative action are that the courts review the decision-making process and not the decision itself unless the decision is unconstitutional, illegal or perverse.

Judicial activism, howsoever liberally interpreted, would be counter-productive and would fail in achieving its laudable purpose if it assumes the role of judicial governance.

It is one thing to direct the executive to perform, it is another to say “if you do not do, we will do it ourselves”. The judiciary has the power to correct the erring executive and direct it to act if it is failing to act when it should. At the same time, the courts have to be cautious that they do not wittingly or unwittingly become a source of obstruction in the performance of states’ obligations.”



The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be un-constitutional. This power of the Supreme Court is called the Judicial Review power.

Below are some of the Articles in the Constitution from which Courts derive their power of Judicial Review

  • Article 13 declares that any law which contravenes any of the provisions of the part of Funda­mental Rights shall be void; any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void”.
  • Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
  • Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
  • Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.

In the land mark judgment of Keshavanda Bharathi v. State of Kerela, the apex court of India the propounded the doctrine of basic structure according to which it said that the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution.


It connotes the assertive role played by the Judiciary to force the other organs if the state to discharge their duties, as per the Constitution, towards the public. It has been widely appreciated by public in general as it ensures that the administration of the country does not suffer because of the negligence on the part of the Executive and Legislature; recently seen in cases like oxygen shortage due to covid crisis in the country.

However critics argue that the Judiciary is blurring the constitutional demarcation of Art 32 and Art 226 by hearing cases and passing orders on the cases other than those involving breach of Fundamental Rights.

         It would be appropriate if the Judiciary employ self restraint and should evolve a code of ethics while indulging in Judicial Activism and should use it only as a last resort so as to make sure its action not led to  invalidate the concept of separation of powers set out in the Constitution.

The scope of judicial review should fall in three dimensions – firstly, to establish fairness in administrative actionsecondly, to protect the guaranteed constitutional fundamental rights and lastly, to rule on questions of legislative competence between the centre and the states so as to maintain the balance of federalism . This also means that it will not bury the concept of separation of powers, theory of Checks and Balances


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