Judicial Review vs Judicial Activism
Judicial review tests laws and executive action against the Constitution. Judicial activism is courts proactively using that power through PIL and expansive Article 21 reading.
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Judicial review is the constitutional power of courts to examine and invalidate laws and executive actions that violate the Constitution; judicial activism is a proactive style of adjudication where courts expand rights and issue policy directions, often through PIL. It is woven into the Constitution through Articles 13, 32, 226, and the appellate structure.
Judicial activism is not a different power but a style of using it: suo motu notices, postcard PILs, reading “right to education” or “clean environment” into Article 21. UPSC tests whether you know review is constitutional doctrine while activism is debated practice — and that Basic Structure protects review itself (Kesavananda Bharati).
Side-by-side comparison
| Feature | Judicial Review | Judicial Activism |
|---|---|---|
| Core function | Invalidate unconstitutional law/action | Expand rights, fill legislative vacuum |
| Landmark anchor | Kesavananda, Minerva Mills, Art. 13 | S.P. Gupta, Vishaka, Hussainara Khatoon |
| Typical trigger | Challenge to statute or executive order | Letter/postcard, suo motu, amicus |
| Criticism | “Judicial overreach” if review expands | “Judicial legislation”, separation of powers debate |
| Counter-idea | Judicial restraint / deference | Judicial restraint — wait for Parliament |
| Emergency | Review of non-FR laws continues | PIL still possible; FR enforcement may be curtailed |
At a glance
Nature
Constitutional power
Judicial approach / philosophy
Source
Arts. 13, 32, 226, 136, 142
Evolved through case law (PIL era)
Role of other branches
Checks legality
May direct policy-like remedies
Basic Structure
Explicitly protected
Not a separate Basic Structure pillar
A state bans all street vendors overnight
If the ban violates Article 19(1)(g) on livelihood, a court can strike it down — that is judicial review. If the court goes further and frames detailed vending zones, licensing timelines, and rehabilitation rules in the absence of any law (as in Olga Tellis or similar PIL traditions), it is acting proactively — judicial activism. Review asks “is this constitutional?” Activism often adds “and here is what the State must do now.”
What this means for the exam
Review is the power; activism is an assertive way of exercising it. Courts can review without being “activist,” but activism always rests on review powers.
Understand the difference
Why review is non-negotiable in India
Unlike the US (Marbury v. Madison), India does not depend on a single case for review — Article 13(2) expressly bars the State from making laws that take away or abridge Fundamental Rights. The Supreme Court held in Kesavananda Bharati (1973) that judicial review is part of the Basic Structure; Parliament cannot destroy it even by constitutional amendment.
When activism became visible
The late 1970s–1980s saw relaxed locus standi, epistolary jurisdiction, and expansion of Article 21 (life with dignity). Justice P.N. Bhagwati and Justice V.R. Krishna Iyer are associated with this phase. Activism addressed under-trial prisoners, bonded labour, and environmental harm — but also invited debate on whether courts should frame policy.