Most aspirants I have taught over the years use “judicial review” and “judicial activism” interchangeably. This is a costly mistake in the UPSC exam. These two concepts share a family resemblance but differ fundamentally in origin, scope, and constitutional basis.
By the end of this piece, you will understand each concept clearly, know how they differ, and be able to use them correctly in both Prelims and Mains answers.
Where This Topic Sits in the UPSC Syllabus
| Exam Stage | Paper | Syllabus Section |
|---|---|---|
| Prelims | General Studies | Indian Polity — Structure, Organisation, Functioning of Judiciary |
| Mains | GS-II | Separation of Powers; Judiciary — Structure, Organisation, Functioning |
This topic has appeared directly or indirectly in UPSC at least 6-7 times since 2010. It connects closely with topics like Basic Structure Doctrine, PIL (Public Interest Litigation), separation of powers, and judicial overreach.
What Is Judicial Review?
Judicial review is the power of courts to examine laws passed by the legislature and actions taken by the executive, and to declare them void if they violate the Constitution. Think of it as a checkpoint. Every law must pass through the Constitution’s filter, and the judiciary operates that filter.
In India, judicial review is rooted in several constitutional provisions — Article 13 (laws inconsistent with Fundamental Rights are void), Articles 32 and 226 (writ jurisdiction of Supreme Court and High Courts), and Article 246 (distribution of legislative powers). The Supreme Court confirmed this power firmly in the Kesavananda Bharati case (1973), declaring judicial review part of the Basic Structure of the Constitution.
Judicial review is not something judges invented on their own. It is a power the Constitution explicitly grants. This is the single most important distinction you must remember.
What Is Judicial Activism?
Judicial activism refers to a proactive role taken by the judiciary — going beyond its traditional function of interpreting law, to actually directing policy or filling gaps left by legislative and executive inaction. It is not a constitutional provision. It is a judicial attitude or approach.
The best Indian example is Vishaka v State of Rajasthan (1997). There was no law against sexual harassment at the workplace. Parliament had not acted. The Supreme Court stepped in and laid down binding guidelines that functioned as law until Parliament passed the Sexual Harassment of Women at Workplace Act in 2013.
Another example: the court directing the government to implement mid-day meal schemes, or intervening in environmental matters when pollution control boards failed to act. In each case, the judiciary was not just reviewing a law — it was actively shaping policy.
The Core Distinction
Here is how I explain it in my classroom. Judicial review is the gatekeeper — it checks whether a law is constitutional. Judicial activism is the gap-filler — it steps in when the other branches fail to act. One is a defined constitutional power. The other is a behavioural approach that courts adopt in specific circumstances.
Judicial review is defensive. It says, “This law violates the Constitution, so it is struck down.” Judicial activism is proactive. It says, “No one is protecting the citizens’ rights, so the court will intervene.”
Both are legitimate in Indian constitutional practice, but judicial activism faces more criticism because it raises questions about separation of powers. When does activism become judicial overreach? That boundary is not clearly defined, and UPSC loves to test your understanding of this grey area.
Key Tools of Judicial Activism in India
- Public Interest Litigation (PIL) — allows any citizen to approach courts on behalf of those who cannot. This was the primary vehicle of activism since the 1980s.
- Expansive interpretation of Article 21 — the right to life has been expanded to include right to livelihood, clean environment, privacy, dignity, and more.
- Continuing mandamus — the court keeps a case open and monitors government compliance over months or years.
- Court-appointed committees — to investigate and recommend action on matters like forest conservation or prison reform.
Criticisms and Limits
Critics argue that judicial activism undermines democracy. Judges are not elected. When they make policy, they bypass the legislature. The counter-argument is that when elected bodies fail vulnerable citizens, someone must step in.
The National Commission to Review the Working of the Constitution (2002) recommended that courts should exercise restraint and not take over executive functions. The Supreme Court itself has acknowledged the danger of overreach in several judgments.
For UPSC Mains, always present both sides. Show that you understand the tension between judicial independence and democratic accountability.
Previous Year UPSC Questions on This Topic
Q1. “Judicial legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution.” Justify this statement with reference to the role of judiciary in India.
(UPSC Mains 2020 — GS-II)
Answer: The Indian Constitution establishes a system where the legislature makes law, the executive implements it, and the judiciary interprets it. When courts issue directions that effectively create new rules — as in the Vishaka guidelines — they enter legislative territory. While such interventions are sometimes necessary to protect fundamental rights, they blur institutional boundaries. The doctrine of separation of powers requires each organ to respect the other’s domain. Judicial legislation, however well-intentioned, can set precedents where unelected judges routinely substitute their judgment for that of elected representatives, weakening parliamentary sovereignty.
Explanation: This question tests whether you can distinguish between legitimate judicial review and problematic judicial overreach. The examiner wants a balanced answer — acknowledge the necessity but highlight the constitutional concern.
Q2. Which of the following is correct regarding judicial review in India?
1. It is derived from the US Constitution
2. It is part of the Basic Structure
3. It can only be exercised by the Supreme Court
4. It applies only to Fundamental Rights
(Prelims-style question)
Answer: Option 2 is correct. The Kesavananda Bharati case (1973) established judicial review as part of the Basic Structure. While the concept was inspired by the US, in India it derives from the Constitution itself. High Courts also exercise judicial review under Article 226. It applies to all constitutional provisions, not just Fundamental Rights.
Q3. “Judicial activism and judicial overreach are separated by a thin line.” Comment.
(UPSC Mains 2015 — GS-II)
Answer: Judicial activism becomes overreach when courts substitute their policy preferences for those of elected bodies without constitutional justification. PIL-driven interventions in areas like road safety, pollution control, and mid-day meals have been widely praised. But when courts fix timelines for legislative action or micro-manage administrative decisions — like banning liquor shops near highways — questions arise about institutional competence. The line between activism and overreach is determined by whether the court is protecting rights (legitimate) or making governance choices (problematic). A self-imposed doctrine of restraint is the only real safeguard.
Key Points to Remember for UPSC
- Judicial review is a constitutionally granted power; judicial activism is a judicial approach or attitude — do not confuse the two.
- Articles 13, 32, 226, and 246 form the constitutional basis of judicial review in India.
- Judicial review is part of the Basic Structure and cannot be taken away even by a constitutional amendment.
- PIL is the main instrument through which judicial activism operates in India.
- Article 21 has been the most expansively interpreted article, making it a vehicle for judicial activism.
- Always discuss separation of powers when writing about judicial activism in Mains.
- Present both sides — necessity of activism vs. risk of overreach — for a balanced Mains answer.
Understanding this distinction gives you an edge in both Prelims elimination and Mains answer quality. As a next step, read the Kesavananda Bharati and Vishaka judgments in summary form from any standard Polity textbook. Once you see these concepts applied in real cases, the distinction will stay with you permanently.