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Judicial Review, Judicial Activism and Judicial Overreach are common terms used in the news. In this post, we will compare these terms and explain the main difference between them.
Legislature has the power to make laws but this power is not absolute. Judicial Review is that process by which the Judiciary reviews the validity of laws that are passed by the legislature. The power of Judicial Review and where does it come from: The power comes from the Constitution of India itself that if from Article 13. The power of judicial review is to protect and enforce the fundamental rights of a citizen guaranteed in Part III of the Constitution of India.
Article 13 of the Constitution prohibits the Parliament of India and the state legislatures from making those laws that "may take away or abridge the fundamental rights" guaranteed to the citizens of our country.
The provision of Article 13 is to ensure the protection of the fundamental rights and consider any law "inconsistent with or in derogation of the fundamental rights" as the void one. The term ‘law' includes any "Ordinance, order, bye-law, rule, regulation, notification, custom or usage" having the force of law in India under the Article 13. Examples of Judicial Review: The event of striking down the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the Indian constitution.
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Judicial activism explains a more active role taken by Judiciary to dispense social justice of citizens. Whenever someone speaks about Judicial Activism, they point fingers to the invented and formed mechanisms which have no constitutional backing up. For example Suo moto cases, Public Interest Litigations (PIL), new doctrines etc.
The power of Judicial Activism and where does it come from: Judicial Activism hasn't got the constitutional articles to support its cause or origin. The Indian Judiciary invented it and there is a similar concept in the United States of America as well.
Suo Motto cases and the innovations of Public Interest Litigation (PIL), which involves the discontinuation of the principle of Locus Standi, have allowed the Judiciary to indulge in many public issues, even when there is no complaint from the concerned political party.
The earlier instances of Judicial Activism were connected with enforcing the Fundamental Rights but nowadays Judiciary has started interfering in the governance issues as well. Examples of Judicial Activism: There are certain examples of Judicial Activism and them are :Invention of the ‘basic structure doctrine' in the ‘Keshavanad Bharati case' in 1973 by which the Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to various schools, the order passed by the National Green Tribunal (NGT) that banned diesel trucks older than 10 years in Delhi and many others.
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The path between judicial activism and Judicial Overreach is very narrow. When judicial activism crosses its limits and becomes judicial adventurism it is known as Judicial Overreach. When the judiciary overreaches the powers given to it, it may then interfere with the proper functioning of the legislative or executive organs of government at that particular time.
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The power comes from nowhere. It is undesirable in any democracy and destroys the spirit of separation of powers. Examples of Judicial Overreach: The thing that makes any action activism or overreach is based upon the perspective of individuals. But simply, striking down of NJAC bill and the 99th constitutional amendment of India, the order passed by the Allahabad High Court that made it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for the case of contempt of court etc. are considered as examples of Judicial Overreach.
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