Difference between judicial review and judicial activism
Judicial review is the courts' power to test laws and executive action against the Constitution, and judicial activism is a proactive way of using that power.
By UPSCYatra Editorial Team - Jun 5, 2026
Table of contents
Judicial review is the power of the courts to examine laws and executive actions and to invalidate those that violate the Constitution. It runs through Articles 13, 32, and 226, and through the appellate structure. Judicial activism is a style of using that power. Courts expand rights and issue directions that look like policy, often through public interest litigation, suo motu notices, and a reading of Article 21 that has included education and a clean environment. Kesavananda Bharati treats judicial review as part of the basic structure. Activism is not a separate pillar of that structure, and it is not a synonym for Article 142.
Difference between judicial review and judicial activism
Feature
Judicial Review
Judicial Activism
Meaning
Power to invalidate an unconstitutional law or action
Proactive style that expands rights and fills a legislative gap
Law
Articles 13, 32, 226, 136, and 142; Kesavananda Bharati, 1973, and Minerva Mills
No dedicated article; Article 142 is complete justice, not a definition of activism
Cases
Kesavananda Bharati and Minerva Mills
S.P. Gupta, Vishaka, and Hussainara Khatoon
Trigger
A challenge to a statute or an executive order
A letter or postcard, a suo motu notice, or an amicus
Limit
Judicial restraint is the cautious use of the same power
Critics call some orders judicial legislation and a strain on the separation of powers
Effect
A law or action falls if it fails the Constitution; Parliament cannot abolish the power
Directions on under-trials, bonded labour, and the environment; debate about how far judges should write policy
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Developed through case law in the public interest era
Role of other branches
Judicial Review
Checks legality
Judicial Activism
May direct remedies that resemble policy
Basic Structure
Judicial Review
Expressly protected
Judicial Activism
Not a separate basic-structure pillar
Example
A state bans all street vendors overnight
If a ban violates Article 19(1)(g) on livelihood, a court can strike it down. That is judicial review. If the court goes on to frame vending zones, licensing timelines, and rehabilitation rules in the absence of a statute, in the manner of Olga Tellis and similar public interest cases, it is acting proactively. That is judicial activism. Review asks whether the measure is constitutional. Activism often adds a set of directions about what the State must do next.
What this means for the exam
Review is the power. Activism is an assertive way of using it. A court can review a law without being called activist. Activism still rests on the review powers the court already has.
Judicial review
Article 13(2) bars the State from making a law that takes away or abridges a Fundamental Right. Articles 32 and 226 supply the writs. Article 136 is the broad appellate power, and Article 142 lets the Supreme Court pass orders to do complete justice. Those articles are the machinery. Article 142 is not a definition of activism. Kesavananda Bharati in 1973 held that judicial review is part of the basic structure, so an amendment cannot destroy it. Minerva Mills is the other anchor in the entry.
In an emergency, review of laws that are not Fundamental Rights continues. Enforcement of some Fundamental Rights may be curtailed. The power is a check on legality. It is not, by itself, a direction that the government must design a new scheme. A court can strike down a street-vending ban under Article 19(1)(g) and stop there.
Judicial activism
Activism is a way of judging, not a separate jurisdiction. From the late 1970s into the 1980s the Supreme Court relaxed who could file, accepted letters as petitions, and read Article 21 as life with dignity. Justice P.N. Bhagwati and Justice V.R. Krishna Iyer are the names attached to that phase. Hussainara Khatoon, S.P. Gupta, and Vishaka are the case names. The work reached under-trial prisoners, bonded labour, and environmental harm. Olga Tellis stands for the proactive remedial style.
The criticism is judicial legislation: unelected judges filling a gap when Parliament or the executive has not acted. Activism is not illegal, and it is not a new court. It uses the existing writ and review powers, and it can be corrected on appeal. It is not listed as its own basic-structure pillar. A statement that Article 142 "provides" activism confuses a power to do complete justice with a label for a style of judging.
Key takeaway
Judicial review is the constitutional power to check laws and state action. Judicial activism is a proactive style, including public interest litigation and a wide reading of Article 21, and it is not a separate power.
Difference between judicial review and judicial activism FAQs
What is judicial review?
Judicial review is the power of the courts to examine laws and executive actions and to invalidate those that violate the Constitution. Articles 13, 32, and 226 are the core provisions. Kesavananda Bharati treats the power as part of the basic structure.
What is judicial activism?
Judicial activism is a proactive style of judging. Courts expand rights and issue directions, often through public interest litigation and a wide reading of Article 21. It is not a separate constitutional power.
What is the main difference between judicial review and judicial activism?
Review is the power to test legality. Activism is an assertive way of using that power, sometimes with policy-like remedies. Review is protected as basic structure. Activism is a description of practice.
Is judicial activism provided by Article 142?
No. Article 142 empowers the Supreme Court to do complete justice. It is not a synonym for activism. Activism has no standalone article.
Is judicial review part of the basic structure?
Yes. Kesavananda Bharati holds that Parliament cannot abolish judicial review by amendment.
Can a court exercise judicial review without being described as activist?
Yes. Striking down an unconstitutional law is review. Activism is the further step of framing remedial policy, as in some public interest cases. Activism still depends on the review powers.
PYQ linkage
1997 · Prelims
Assertion: Wilful disobedience of court orders amounts to contempt. Reason: Judicial activism cannot be practised without punitive contempt powers. Which is correct?
