Judiciary part 2- Judicial review, Judicial Activism and PIL
Judicial review | Judiciary part 2- Judicial review, Judicial Activism and PIL
- Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary. Consequently, they cannot be enforced by the Government.
- Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories:
- Judicial review of constitutional amendments.
- Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
- Judicial review of administrative action of the Union and State and authorities under the state.
- The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
- Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country.
- The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
- Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India.
Need For Judicial Review | Judiciary part 2- Judicial review, Judicial Activism and PIL
Judicial review is needed for the following reasons:
- To uphold the principle of the supremacy of the Constitution.
- To maintain federal equilibrium (balance between the Centre and the states).
- To protect the Fundamental Rights of the citizens.
- Judicial activism denotes a more active role taken by Judiciary to dispense social justice. When we speak of Judicial Activism, we point fingers to the invented mechanisms which have no constitutional backing (Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).
- Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America.
- Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
- Although the earlier instances of Judicial Activism was connected with enforcing Fundamental Rights, nowadays, Judiciary has started interfering in the governance issues as well.
Public interest litigation (PIL)
- Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.
- Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large.
- The original purpose of PILs has been to make justice accessible to the poor and the marginalised.
- It is an important tool to make human rights reach those who have been denied rights.
- It democratises the access of justice to all. Any citizen/agency who is capable can file petitions on behalf of those who cannot or do not have the means to do so.
- It helps in judicially monitoring state institutions like prisons, asylums, protective homes, etc.
- It is an important tool in judicial review.