Judicial Review, Judicial Activism, PIL & National Judicial Council

Judicial Review is the cornerstone of India's constitutional supremacy — empowering courts to strike down laws and executive actions that violate the Constitution. Combined with Judicial Activism and PIL, the judiciary has become an active guardian of rights. Understanding Art. 13, 32, 226, the Basic Structure doctrine, the PIL revolution, and the ongoing NJAC vs Collegium debate is essential for GS-II.

UPSC Prelims · Mains GS-II Laxmikanth Ch. 23–24 ~22 min read Arts 13, 32, 131–136, 226 Kesavananda Bharati 1973 99th Amendment 2014 · NJAC 2015

Conceptual Clarity
Judicial Review — Definition & Origin
Constitutional Basis in India
Scope of Judicial Review
India vs USA Judicial Review
Judicial Activism — Definition & Examples
Activism vs Restraint vs Overreach
PIL — What It Is & Origin
PIL — Features & Procedure
Important PIL Cases
Abuse of PIL
NJAC — Background & 99th Amendment
NJAC Struck Down 2015
National Judicial Council (Proposed)
Collegium — Issues & Controversies
Prelims PYQs
Mains PYQs
15-Minute Revision Box

Conceptual Clarity — The Judicial Power Triangle

Three distinct but related concepts must be distinguished clearly for UPSC:

Judicial Review: The power of courts to test the constitutional validity of laws and executive actions — strikes down what is unconstitutional. Rooted in Arts. 13, 32, 226, 131–136.
Judicial Activism: The philosophy of using judicial power proactively — courts going beyond literal interpretation to protect rights, fill governance gaps, and issue structural injunctions.
PIL (Public Interest Litigation): The procedural vehicle through which judicial activism is most visibly exercised — any citizen can approach the court for public causes without personal locus standi.

All three converge on a key constitutional value: judicial independence — which is why the NJAC was struck down as violating the basic structure.

Part A — Judicial Review

1. Definition & Origin

Judicial Review is the power of the judiciary to examine the constitutional validity of legislative enactments and executive actions. If found inconsistent with the Constitution, they are declared void and inoperative.

Origin — Marbury v. Madison (USA, 1803)

Chief Justice John Marshall of the US Supreme Court established the doctrine in Marbury v. Madison (1803).
Principle: "It is emphatically the province and duty of the judicial department to say what the law is." — If a law conflicts with the Constitution, the Constitution prevails, and the law is void.
The US Constitution does not explicitly grant judicial review — Marshall derived it from the logic of a written, supreme Constitution.

In India — Constitutional Foundation

Unlike the USA, India's Constitution explicitly provides for judicial review through multiple articles:

Art. 13: Laws inconsistent with Fundamental Rights are void — the textual bedrock of judicial review in India.
Art. 32: SC's power to issue writs for enforcement of FRs — Dr. Ambedkar called it "the heart and soul of the Constitution."
Art. 226: HC's power to issue writs for enforcement of any right (broader than Art. 32 — not limited to FRs).
Arts. 131–136: Appellate review jurisdiction of the Supreme Court.
Arts. 245–246: Parliament and State Legislatures must act within the limits of the 7th Schedule — courts can review legislative competence.

Key Principle (Kesavananda Bharati 1973): Judicial review extends even to constitutional amendments — Parliament cannot use its amending power to destroy the basic structure of the Constitution. This is India's most significant contribution to constitutional law globally.

2. Constitutional Basis of Judicial Review in India

Fig 22.1 — Six pillars of Judicial Review's constitutional basis in India

Article	Provision	Significance for Judicial Review
Art. 13(1)	Pre-constitutional laws inconsistent with FRs are void to extent of inconsistency	Courts can strike down old laws
Art. 13(2)	State shall not make laws taking away or abridging FRs; such law void	Primary textual basis — prospective laws
Art. 13(3)	"Law" includes ordinance, order, bye-law, rule, regulation, notification, custom or usage	Broad scope — not just Acts of Parliament
Art. 32	SC has power to issue directions, orders or writs (habeas corpus, mandamus, prohibition, certiorari, quo warranto)	SC as guardian of FRs; Art. 32 itself a FR (cannot be suspended)
Art. 226	HC has power to issue writs — for enforcement of FRs or for any other purpose	Broader than Art. 32; covers non-FR rights too
Art. 131	Original jurisdiction of SC — disputes between States or between Centre and State	Review of Centre-State disputes
Art. 132–136	Appellate jurisdiction — substantial question of law as to interpretation of Constitution	SC as final interpreter of Constitution
Art. 245	Parliament makes laws for whole or part of India; State legislatures for State	Territorial limits — courts can review overreach
Art. 246	Three Lists (7th Schedule) — Parliament on List I, States on List II, concurrent on List III	Courts test legislative competence

3. Scope of Judicial Review in India

3.1 Review of Constitutional Amendments

The most important and contested area. Can Parliament amend the Constitution to any extent? The answer has evolved:

Shankari Prasad (1951): Art. 13 does not include constitutional amendments — Parliament has unlimited amending power.
Golaknath (1967): Parliament cannot amend FRs — amendments are "law" under Art. 13.
24th Amendment (1971): Parliament overturned Golaknath — affirmed unlimited amending power.
Kesavananda Bharati v. State of Kerala (1973): 13-judge bench by 7:6 majority — Parliament can amend any part of Constitution but cannot destroy its basic structure. Judicial review of amendments is valid.
Minerva Mills (1980): Art. 368 clauses inserted by 42nd Amendment (excluding judicial review) struck down — the power to review amendments is itself part of basic structure.

Basic Structure (not exhaustive list): Supremacy of Constitution · Republican & democratic form · Secular character · Separation of powers · Federal character · Unity & integrity of India · Independence of judiciary · Rule of law · Judicial review · Free & fair elections · Fundamental Rights

3.2 Review of Parliamentary Proceedings

Art. 122: Courts cannot inquire into the validity of any proceeding in Parliament on the ground of any alleged irregularity of procedure.
However, courts can review if the proceedings violate a constitutional provision (not merely procedural rules).
Distinction: procedural irregularity (not reviewable) vs constitutional violation (reviewable).

3.3 Review of President's/Governor's Satisfaction

SR Bommai v. Union of India (1994): Presidential proclamation imposing President's Rule (Art. 356) is subject to judicial review. Courts can examine whether there was relevant material for the President to be "satisfied." Governor's report cannot be made a cloak for political manipulation.
Rameshwar Prasad v. Union of India (2006): Bihar Assembly dissolution on Governor's report reviewed and set aside as mala fide.

3.4 Review of Ordinances

RC Cooper v. Union of India (1970): Ordinances are subject to judicial review — courts can examine if the ordinance is within the legislative competence and does not violate FRs.
DC Wadhwa v. State of Bihar (1987): Repromulgation of ordinances without laying before legislature is a fraud on the Constitution — courts can strike down such ordinances.

3.5 Doctrine of Proportionality

An evolved doctrine of judicial review — courts not only check whether power exists but also whether its exercise is proportionate to the object pursued. Excessive or disproportionate action by state can be struck down even if technically within legal power.

Evolved significantly in Government of NCT Delhi v. Union of India (2023) — SC applied proportionality to examine Centre-State power division over services in Delhi.
Also applied in privacy cases — restrictions on rights must be proportionate (Puttaswamy 2017).

UPSC Trap: Art. 13 does not include constitutional amendments (Shankari Prasad clarified). But Kesavananda created the Basic Structure doctrine as a separate check. So amendments can be reviewed — but through the Basic Structure route, not through Art. 13.

4. India vs USA — Judicial Review Compared

Feature	India	USA
Constitutional basis	Explicitly provided — Arts. 13, 32, 226, 131–136	Implied — derived from Marbury v. Madison (1803); not explicit in US Constitution
Scope	Strong but limited by Basic Structure — cannot review basic structure itself	More expansive — "judicial supremacy" over legislature
Amendment review	Yes — courts can strike down constitutional amendments violating Basic Structure (Kesavananda)	Constitutional amendments (Art. V) very rare; generally not judicially reviewable as "unconstitutional"
Legislative response	Legislature can re-legislate to achieve same object (except on Basic Structure)	Struck-down law cannot be re-enacted without constitutional amendment
Writ jurisdiction	Both SC (Art. 32) and HC (Art. 226) have writ jurisdiction	Only federal courts; no equivalent of Art. 226 at state level
Model	"Constitutional supremacy" — Constitution is supreme; courts enforce it	"Judicial supremacy" — SC interpretation is final and binding on all branches
Writs	Five writs enumerated (HC, MC, Prohibition, Certiorari, QW)	Common law writs; habeas corpus most prominent

Key Quote (HM Seervai): "Judicial Review in India is both stronger and more limited than in the USA — stronger because it is explicitly constitutional; more limited because the Basic Structure doctrine itself sets outer limits on what even the courts can examine."

Part B — Judicial Activism

5. Definition & Distinguished from Judicial Restraint

Judicial Activism refers to the philosophy and practice of judges going beyond the traditional role of interpreting and applying law — to actively protect constitutional rights, fill legislative gaps, and issue directions to the executive to implement policy or remedy rights violations.

Concept	Approach	Basis
Judicial Restraint	Strict construction; deference to legislature; courts apply what law says, not what it should say	Separation of powers; democratic legitimacy of legislature
Judicial Activism	Expansive interpretation; courts fill gaps, protect rights proactively; structural injunctions	Courts as guardian of Constitution; rights-based jurisprudence
Judicial Overreach	Courts entering domains reserved for legislature/executive; micro-managing policy	Criticism — unelected judges replacing democratic decisions

6. Key Examples of Judicial Activism in India

Maneka Gandhi v. Union of India (1978)

SC expanded Art. 21 — "procedure established by law" must be just, fair and reasonable (not any arbitrary procedure). Overruled AK Gopalan (1950). Began expansive reading of personal liberty.

Hussainara Khatoon v. Bihar (1979)

First PIL — Right to speedy trial declared part of Art. 21. SC ordered release of undertrial prisoners who had served longer than maximum sentence for their offence. Seminal activist judgment.

MC Mehta v. Union of India (1987+)

Series of PILs on environment — Ganga pollution (ordered closure of polluting tanneries), Taj Trapezium Zone (relocated industries), Vehicular pollution Delhi (CNG mandate), Shriram Gas Leak (absolute liability doctrine).

Vishakha v. State of Rajasthan (1997)

SC laid down binding guidelines on sexual harassment at workplace — in the absence of any legislation. Guidelines treated as law until POSH Act 2013 was enacted. Classic example of filling legislative vacuum.

NALSA v. Union of India (2014)

SC recognised transgender persons' rights — right to self-identification of gender, reservations as OBC/SC/ST, protection against discrimination. Directed government to create welfare measures. Preceded Transgender Persons Act 2019.

KS Puttaswamy v. Union of India (2017)

9-judge bench unanimously held Right to Privacy is a fundamental right under Art. 21. Overruled MP Sharma (1954) and Kharak Singh (1963). Foundation for data protection jurisprudence.

Navtej Singh Johar v. Union of India (2018)

5-judge bench unanimously decriminalised consensual same-sex relations — struck down Section 377 IPC partially. Earlier SC had reversed HC in Suresh Kumar Koushal (2013). Significant rights-expansion.

Joseph Shine v. Union of India (2018)

5-judge bench unanimously struck down adultery law (Section 497 IPC) as unconstitutional — violating dignity, equality and privacy of women. Law treated women as property of husbands.

Electoral Bonds Case 2024: Association for Democratic Reforms v. Union of India — SC struck down the Electoral Bonds Scheme as unconstitutional, violating voters' right to information under Art. 19(1)(a). Directed SBI and EC to disclose donors and recipients. Landmark example of recent judicial activism.

7. Judicial Activism vs Restraint vs Overreach — The Spectrum

Fig 22.3 — The judicial philosophy spectrum: from restraint to activism to overreach

7.1 Criticism of Judicial Activism

Undermines separation of powers: Judges not elected; should not substitute their views for legislature or executive decisions on policy.
Democratic legitimacy deficit: "Counter-majoritarian problem" — judges can override democratically enacted laws without electoral accountability.
Governance confusion: Multiple judicial orders on policy issues create competing authorities — courts vs ministers vs bureaucrats.
"Government by judiciary": When courts start directing day-to-day administration (traffic, admissions, municipal management), executive governance is undermined.
Implementation problem: Courts issue directions but lack machinery to implement — leads to contempt proceedings and eroding judicial credibility.

7.2 Defence of Judicial Activism

Courts intervene where legislature has failed to act — filling vacuum to protect constitutional rights.
Checks executive arbitrariness — especially important for marginalised groups who cannot win elections.
India's weak legislative and executive institutions make judicial intervention necessary.
Article 21 is a living provision — must be interpreted dynamically to protect dignity in a changing world.

Part C — Public Interest Litigation (PIL)

8. What is PIL & Its Origin

Public Interest Litigation (PIL) is a legal action in the public interest where any citizen — even without a personal grievance — can approach the court seeking judicial intervention to protect the rights of others or remedy systemic violations of constitutional rights. Traditional locus standi (requirement of personal injury) is relaxed.

Origin in India

Pioneered by Justice P.N. Bhagwati (Chief Justice 1986–87) and Justice V.R. Krishna Iyer in the late 1970s.
Rooted in the understanding that access to justice was effectively denied to the poor and marginalised — who could not afford lawyers or court fees.
First landmark PIL: Hussainara Khatoon v. Home Secretary, State of Bihar (1979) — Justice PN Bhagwati entertained letters from journalists on behalf of undertrial prisoners.
SP Gupta v. Union of India (1981): "Judges' Transfer Case" — SC definitively established that any member of the public acting bona fide can approach SC/HC for public interest even without personal locus standi.
MC Mehta series (1980s–90s): Environmental PILs became the template for structural injunctions directed at executive action.

Origin — USA Comparison: PIL in India evolved independently from the US concept of "public interest law." In the US, class action suits (Rule 23 FRCP) serve a similar function. India's PIL is unique in allowing individual citizens to move directly to the highest court on letters — something without parallel in the US.

9. Features of PIL

Fig 22.2 — PIL evolution in India: from Hussainara Khatoon (1979) to Electoral Bonds (2024)

9.1 Key Features of PIL

No or minimal court fee: PIL was designed to be accessible to all — court fees are nominal or waived.
Relaxed locus standi: Any citizen acting bona fide can file. Even a letter to the CJI or HC Chief Justice can be treated as a PIL petition.
Not adversarial: Unlike ordinary litigation, PIL is not party-vs-party — the court itself acts as a guardian of public interest. The State is the respondent, not an adversary in the ordinary sense.
Structural injunctions: Courts can issue continuing mandamus — ongoing directions to government to implement policies over time; monitored through periodic compliance reports.
Amicus Curiae: Courts appoint an independent expert/lawyer to assist as "friend of the court" in complex PILs.
Flexible jurisdiction: SC exercises jurisdiction under Art. 32; HC under Art. 226. Both can take suo motu cognisance (on their own motion) from newspaper reports.
Epistolary jurisdiction: Letters, postcards, telegrams to CJI treated as writ petitions — pioneered by Justice PN Bhagwati.

10. Important PIL Cases & Outcomes

Case	Year	Issue	Outcome/Significance
Hussainara Khatoon v. Bihar	1979	Undertrial prisoners in Bihar jails	Right to speedy trial declared FR under Art. 21; mass release ordered
SP Gupta v. Union of India	1981	Judges' transfer/appointment transparency	Established open locus standi in PIL; any member of public can file bona fide PIL
MC Mehta v. Union of India (Ganga)	1988	Ganga river pollution by tanneries	Closure of non-compliant tanneries; Ganga Action Plan; "absolute liability" in Shriram gas leak
MC Mehta v. Union of India (Taj)	1996	Air pollution near Taj Mahal	Taj Trapezium Zone — 292 industries ordered to relocate or switch to cleaner fuel
Vishakha v. State of Rajasthan	1997	Sexual harassment at workplace	Vishakha guidelines — binding on employers; replaced by POSH Act 2013
Vineet Narain v. Union of India	1998	Hawala scam — CBI independence	SC issued guidelines for CBI independence; directed prosecution of VVIPs; single directive system examined
PUCL v. Union of India	2001	Right to food — PDS distribution	Interim orders directing states to operationalise mid-day meal scheme; right to food as part of Art. 21
Common Cause v. Union of India	2018	Passive euthanasia / Living will	SC recognised right to die with dignity; valid "advance directive" (living will) allowed
ADR v. Union of India (Electoral Bonds)	2024	Anonymity of political funding	Electoral Bonds Scheme struck down as unconstitutional; violates voters' right to know

Right to Education PIL: Unni Krishnan v. AP (1993) — SC read right to education up to age 14 into Art. 21 long before the 86th Amendment (2002) made it explicit under Art. 21A. Classic example of activist interpretation preceding legislative recognition.

11. Abuse of PIL — "PILL" (Private Interest Litigation in Disguise)

The success of PIL has also led to its misuse. Courts have increasingly recognised what is sometimes called "PIL as a weapon rather than a tool":

Filing PIL to settle personal scores or business rivalries under the guise of public interest.
Using PIL to generate publicity or pressurise opponents.
PILs filed to delay government projects (infrastructure, urban development) by business interests who oppose the project.
Frivolous environmental PILs targeting legitimate businesses.

11.1 SC Safeguards Against PIL Abuse

Imposing costs: SC has increasingly imposed heavy costs on frivolous PIL petitioners to deter misuse.
Scrutiny at admission stage: Courts are now stricter at admitting PIL petitions — looking for genuine public interest.
Balaji Raghavan guidelines: SC has articulated that courts must be careful not to become instruments of private interest under public interest cover.
Rejection of PILs on policy matters: Courts increasingly refuse to entertain PILs that are essentially asking courts to make policy choices (DMPQ — domain of the executive).

11.2 PIL in Other Countries

India's PIL innovation has influenced judicial systems globally:

Bangladesh: Active PIL jurisprudence modelled on Indian Supreme Court practice.
Pakistan: Supreme Court of Pakistan developed suo motu powers similar to India.
Sri Lanka: Fundamental rights applications under Art. 126 of Sri Lanka Constitution are similar to India's PIL mechanism.
South Africa: Constitutional Court actively uses "reading-in" and structural interdicts (similar to India's structural injunctions).

UPSC Mains Angle: "PIL has been both the most powerful instrument of judicial activism and the most abused tool of litigation strategy in India." Critically examine — this is a recurring Mains theme requiring balanced analysis of PIL's transformative role alongside its misuse and the courts' corrective responses.

Part D — National Judicial Council (Proposed) & Appointments

12. Background — Three Judges Cases & Collegium

The current system of judicial appointments (Collegium) evolved through three landmark cases:

Case (Judges Case)	Year	Holding on Judicial Appointments
SP Gupta v. Union of India (First Judges Case)	1981	Executive (Law Minister) has primacy in judicial appointments; CJI's opinion not binding. "Consultation" does not mean "concurrence."
Supreme Court Advocates on Record v. Union of India (Second Judges Case)	1993	Overruled SP Gupta — CJI's recommendation is binding; "consultation" means "concurrence." Collegium of CJI + 2 senior judges for SC appointments; CJI + 2 for HC Chief Justices.
In re: Special Reference No. 1 of 1998 (Third Judges Case)	1998	Expanded Collegium — CJI + 4 most senior SC judges for SC appointments. Collegium of HC Chief Justice + 2 senior HC judges for HC appointments. Opinion of majority of collegium prevails.
NJAC Case (4th Judges Case)	2015	NJAC (99th Amendment) struck down. Collegium system revived and continues.

12.1 NJAC — 99th Constitutional Amendment Act, 2014

Parliament passed the 99th Constitutional Amendment Act (2014) and the National Judicial Appointments Commission Act (2014) to replace the Collegium system.
The NJAC was a 6-member body:
1. Chief Justice of India (Chairperson)
2. Two senior-most judges of the Supreme Court
3. Union Minister of Law and Justice
4. Two eminent persons (nominated by a committee of PM + CJI + Leader of Opposition)
Veto clause: Any 2 members could veto an appointment — effectively giving the Law Minister a veto (along with one other member).
Rationale: Bring transparency, accountability, and democratic participation to judicial appointments; end the opaque Collegium system.

13. NJAC Struck Down — Supreme Court Advocates on Record Association v. Union of India (2015)

5-judge bench: 4:1 majority struck down the 99th Amendment and NJAC Act as unconstitutional.
Majority opinion (written partly by Justice JS Khehar, who later became CJI): NJAC violates the basic structure of the Constitution — specifically, the independence of judiciary.
Reasoning:
- Participation of the Law Minister (a political executive member) in judicial appointments threatens judicial independence.
- The "eminent persons" members are nominated by a committee that includes the PM — making appointments susceptible to political influence.
- The veto clause (any 2 members can block) gives the executive effective power to veto judicial appointments.
- Independence of judiciary is a basic structure feature — even Parliament cannot abrogate it through amendment.
Dissent: Justice JS Chelameswar (sole dissenter) — argued that the Collegium system is itself opaque and unaccountable; NJAC was a legitimate parliamentary reform that should be upheld.
After NJAC was struck down, SC directed development of a Memorandum of Procedure (MoP) — but Centre and SC have not agreed on finalised MoP to date.

Key Fact for UPSC: The 99th Amendment was passed with unprecedented unanimity — 367-0 in Lok Sabha and unanimously in Rajya Sabha. Yet it was struck down by the Supreme Court. This raises the deepest question in Indian constitutional law: can an amendment approved by all of Parliament be struck down by 4 unelected judges? The 2015 NJAC case is the most striking exercise of basic structure review.

14. National Judicial Council (NJC) — Proposed Reform

Various constitutional reform bodies have proposed a National Judicial Council as a middle path — maintaining judicial primacy while adding transparency and broader participation:

NCRWC Recommendation (National Commission to Review the Working of the Constitution, 2002)

Recommended a National Judicial Commission for appointments to SC and HC.
Composition suggested: CJI + 2 senior SC judges + Union Law Minister + 1 eminent person — but with judiciary in majority and final say.
Not implemented.

Law Commission Reports

The 230th Law Commission Report (2009) also examined judicial appointments and recommended transparency mechanisms.
Favoured maintaining judicial primacy but with written criteria, published reasoned recommendations, and stakeholder consultation.

Current Position (Post-2015)

Collegium system (CJI + 4 senior SC judges) continues to recommend SC appointments.
Collegium recommendations are formally sent to Government → President → appointment.
Government can return recommendations once; if Collegium reiterates, Government must appoint.
MoP standoff: SC directed in 2015 that a new MoP be drafted; but Centre and SC have disagreed on criteria for eligibility, transparency, and vetting. As of 2026, no finalised MoP.

15. Issues with the Collegium System

Problems with Collegium

Opacity: No written criteria for elevation; no published reasons for selection or rejection.
Nepotism charges: "Uncle judge" syndrome — kin of sitting judges allegedly favoured.
No accountability: Collegium members are not answerable for their choices to any body.
Government delay: Executive can sit on Collegium recommendations for months/years — effectively stalling appointments without formal veto.
No diversity: Limited representation of women, minorities, and regional bars in appointments.

Arguments for Collegium

Judicial independence: Keeps executive out of appointments — prevents political packing of courts.
Domain expertise: Senior judges best placed to assess judicial temperament and legal acumen.
Historical lesson: Emergency (1975–77) showed dangers of executive control — "committed judiciary" appointed by Indira Gandhi.
Basic Structure protection: Independence of judiciary = basic structure; any executive role in appointments risks eroding it.
Reforms possible: Collegium can be made more transparent without executive participation.

15.1 Centre vs SC Standoff on MoP (2016–2026)

After NJAC was struck down (2015), SC directed formulation of a revised Memorandum of Procedure for appointments.
Government wanted MoP to include: national security veto, merit criteria, eligibility criteria. SC objected to national security veto as executive overreach.
Vice President Jagdeep Dhankhar (2023) openly criticised NJAC judgment as "unacceptable" — reigniting the debate.
As of 2026: MoP is still not finalised; standoff continues; judicial vacancies remain high (over 40% vacancy in High Courts).

Current Affairs 2024–25: SC's in-house procedure for judicial accountability (against sitting judges) has also been under scrutiny. Demands for a statutory judicial complaints commission (separate from appointments) have grown. The Chief Justice of India's office itself came under RTI scrutiny — SC held CJI holds public office; some information is disclosable (2019).

16. Prelims PYQs

Prelims 2023

With reference to the doctrine of judicial review in India, which of the following statements is/are correct?
1. Courts can strike down constitutional amendments under the Basic Structure doctrine.
2. Art. 122 bars courts from questioning any proceeding in Parliament.
Answer: Both 1 and 2 are correct — Statement 1 (Kesavananda Bharati 1973); Statement 2 (Art. 122 — procedural irregularity, but courts CAN review if there is a constitutional violation)

Prelims 2022

Which of the following statements about Marbury v. Madison is correct?
Answer: It was decided by the US Supreme Court in 1803; Chief Justice John Marshall established the principle of judicial review; the US Constitution does not explicitly mention judicial review — Marshall derived it by implication

Prelims 2021

With reference to Public Interest Litigation in India, which of the following statements is correct?
(a) Any person can file a PIL even without personal injury (b) PIL requires the same court fee as a regular writ petition (c) PIL can only be filed in the Supreme Court (d) PIL petitioner must be a citizen of India
Answer: (a) — Any person acting bona fide can file PIL without personal locus standi; can be filed in both SC (Art. 32) and HC (Art. 226)

Prelims 2020

The difference between Art. 32 and Art. 226 is:
Answer: Art. 32 (SC) — only for enforcement of Fundamental Rights; Art. 226 (HC) — for enforcement of FRs AND any other legal right. HC's jurisdiction under Art. 226 is broader in terms of the rights it can protect, but SC's jurisdiction under Art. 32 is itself a Fundamental Right (cannot be suspended except during Emergency under Art. 359)

Prelims 2019

The NJAC (99th Constitutional Amendment) was struck down by the Supreme Court in 2015 on the ground that it:
Answer: Violated the basic structure of the Constitution — specifically the independence of judiciary; participation of Law Minister and eminent persons would compromise judicial independence

Prelims 2018

Vishakha guidelines issued by the Supreme Court in 1997 relate to:
Answer: Prevention of sexual harassment of women at workplace — guidelines were issued as binding law in the absence of legislation; replaced by POSH Act 2013 (Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act)

Prelims 2017

Which case established the collegium system for appointment of judges to the Supreme Court?
Answer: Second Judges Case — Supreme Court Advocates on Record Association v. Union of India (1993) established the collegium; Third Judges Case (1998 Advisory Opinion) expanded it to CJI + 4 senior judges

Prelims 2016

Which of the following are examples of Judicial Activism in India?
1. Maneka Gandhi v. Union of India — expanding Art. 21
2. Hussainara Khatoon — right to speedy trial
3. Vishakha guidelines on workplace harassment
Answer: All three are correct examples of judicial activism — courts going beyond literal interpretation or filling legislative vacuum to protect constitutional rights

17. Mains PYQs

Mains GS-II 2023

"The Supreme Court's striking down of NJAC in 2015 raises fundamental questions about the relationship between parliamentary democracy and judicial independence." Critically examine. (250 words)

Hint: 99th Amendment passed unanimously (367-0 in LS); NJAC struck down 4:1; basic structure argument — independence of judiciary; criticism of Collegium (opacity, nepotism, vacancies); alternative reform paths (transparent Collegium, judicial complaints body); comparative — UK Judicial Appointments Commission; democratic legitimacy of basic structure review; MoP standoff.

Mains GS-II 2022

What is judicial activism? Has it helped or harmed India's governance? Discuss with examples. (250 words)

Hint: Define judicial activism (expansive interpretation, PIL, filling legislative gaps); examples — Maneka Gandhi, Vishakha, Navtej Johar, Puttaswamy; positive outcomes — rights expansion, environmental protection, accountability; criticism — counter-majoritarian, separation of powers, governance confusion; balance: legitimate activism vs overreach; Indian context of weak legislature/executive justifying judicial intervention.

Mains GS-II 2021

"PIL has been the greatest democratisation of access to justice but also its greatest abuse." Critically analyse. (250 words)

Hint: PIL origin — PN Bhagwati, Krishna Iyer; democratisation — poor/marginalised access justice (Hussainara Khatoon); landmark outcomes (environment, food, rights); epistolary jurisdiction; abuse — private interest in disguise, competition/commercial battles, delaying projects; SC response — costs on frivolous PILs; reforms needed — screening mechanism, costs, amicus procedure; PIL in other countries.

Mains GS-II 2020

Examine the evolution of the Collegium system for judicial appointments in India. What are its strengths and weaknesses? (250 words)

Hint: Three Judges Cases (1981, 1993, 1998) evolution; current composition (CJI + 4 senior SC judges); strengths — judicial independence, no executive packing; weaknesses — opacity, nepotism, vacancies (40%+ in HCs), no women/diversity criteria, Government delay; NJAC struck down; MoP standoff; reform suggestions — published criteria, diverse panels, oversight body; comparative — UK Judicial Appointments Commission (independent statutory body).

Mains GS-II 2019

What is the significance of the Basic Structure doctrine for Judicial Review in India? How does it differ from the US model? (150 words)

Hint: Kesavananda Bharati 1973 — basic structure as limitation on Parliament's amending power; key elements of basic structure; Minerva Mills (1980) — judicial review itself is basic structure; difference from USA — explicit vs implied review; USA amendments rarely struck down; India: amendments reviewable; India created unique "constitutional supremacy with basic structure guard-rails."

Mains GS-II Expected 2026

"Judicial independence and judicial accountability are both necessary for a healthy democracy. The challenge is to design institutions that ensure both." With reference to India's experience with NJAC, Collegium, and proposed NJC, examine. (250 words)

Hint: Tension between independence (no political appointments) and accountability (public has right to know, diverse judiciary); Collegium fails accountability; NJAC failed independence test; NJC proposals (NCRWC) — middle path; international models (UK JAC statutory body); MoP as partial solution; judicial conduct oversight separate from appointments debate; need for statutory framework that judiciary itself endorses.

18. 15-Minute Revision Box

Must-Remember — Judicial Review, Activism, PIL & NJC

Judicial Review — Constitutional Basis:

Art. 13 — laws inconsistent with FRs are void (textual bedrock)
Art. 32 — SC writs for FRs; itself a FR (cannot be suspended)
Art. 226 — HC writs for FRs + any other right (broader)
Arts. 131–136 — appellate jurisdiction of SC
Arts. 245–246 — legislative competence review (7th Schedule)
Kesavananda 1973 — review of constitutional amendments via Basic Structure

Key JR Cases:

Marbury v. Madison (1803) — USA origin of JR
Kesavananda Bharati (1973) — Basic Structure; amendments reviewable
Minerva Mills (1980) — judicial review itself = basic structure
SR Bommai (1994) — Art. 356 proclamation is reviewable
NCTD v. Union of India (2023) — proportionality doctrine

Judicial Activism — Must-Know Cases:

Maneka Gandhi (1978) — Art. 21 expanded — "just, fair, reasonable"
Vishakha (1997) — workplace harassment guidelines (pre-POSH Act)
Puttaswamy (2017) — Privacy = FR under Art. 21
Navtej Johar (2018) — S.377 decriminalised
Electoral Bonds (2024) — scheme struck down

PIL — Key Facts:

Pioneers: Justice PN Bhagwati + Justice VR Krishna Iyer (late 1970s)
First PIL: Hussainara Khatoon (1979) — undertrials + speedy trial
Locus standi opened: SP Gupta (1981) — any member of public
Epistolary jurisdiction: letter to CJI treated as PIL
Can be filed: Art. 32 (SC) or Art. 226 (HC)
SC can take suo motu cognisance from newspaper reports

Collegium System — Three Judges Cases:

1st Judges Case (SP Gupta 1981) — Executive primacy (overruled)
2nd Judges Case (1993) — CJI + 2; judiciary primacy
3rd Judges Case (1998) — CJI + 4 senior SC judges (current)
4th Judges Case / NJAC Case (2015) — 99th Amendment struck down 4:1; Collegium revived

NJAC (99th Amendment 2014):

6-member body: CJI + 2 SC judges + Law Minister + 2 eminent persons
Struck down 2015 — violated basic structure (judicial independence)
Justice JS Khehar wrote majority; Justice Chelameswar dissented
MoP (Memorandum of Procedure) still unresolved as of 2026

4 UPSC Traps: (1) Art. 226 (HC) is BROADER than Art. 32 (SC) — HC can protect any right, not just FRs. (2) Art. 32 itself is a FR — cannot be suspended except under Art. 359 (National Emergency). (3) NJAC was struck down for violating BASIC STRUCTURE — not for procedural reasons. (4) The Collegium system is NOT in the Constitution — it was judicially created through the Three Judges Cases.

Item	Detail
JR textual basis	Arts. 13, 32, 226, 131–136
Basic Structure case	Kesavananda Bharati (1973)
PIL pioneer	Justice PN Bhagwati
First PIL	Hussainara Khatoon (1979)
Locus standi case	SP Gupta (1981)
NJAC Amendment	99th Amendment, 2014
NJAC struck down	2015, 4:1 majority
Current Collegium	CJI + 4 senior SC judges
Vishakha guidelines	1997; replaced by POSH 2013
Privacy as FR	Puttaswamy (2017) — 9 judges

Case	Year	Outcome
SP Gupta	1981	Executive primacy
SCARA	1993	Judiciary primacy
Advisory Ref.	1998	CJI + 4 judges
NJAC (4th)	2015	Collegium restored

Judicial Review, Judicial Activism, PIL & National Judicial Council

On this page

Conceptual Clarity — The Judicial Power Triangle

Part A — Judicial Review

1. Definition & Origin

Origin — Marbury v. Madison (USA, 1803)

In India — Constitutional Foundation

2. Constitutional Basis of Judicial Review in India

3. Scope of Judicial Review in India

3.1 Review of Constitutional Amendments

3.2 Review of Parliamentary Proceedings

3.3 Review of President's/Governor's Satisfaction

3.4 Review of Ordinances

3.5 Doctrine of Proportionality

4. India vs USA — Judicial Review Compared

Part B — Judicial Activism

5. Definition & Distinguished from Judicial Restraint

6. Key Examples of Judicial Activism in India

Maneka Gandhi v. Union of India (1978)

Hussainara Khatoon v. Bihar (1979)

MC Mehta v. Union of India (1987+)

Vishakha v. State of Rajasthan (1997)

NALSA v. Union of India (2014)

KS Puttaswamy v. Union of India (2017)

Navtej Singh Johar v. Union of India (2018)

Joseph Shine v. Union of India (2018)

7. Judicial Activism vs Restraint vs Overreach — The Spectrum

7.1 Criticism of Judicial Activism

7.2 Defence of Judicial Activism

Part C — Public Interest Litigation (PIL)

8. What is PIL & Its Origin

Origin in India

9. Features of PIL

9.1 Key Features of PIL

10. Important PIL Cases & Outcomes

11. Abuse of PIL — "PILL" (Private Interest Litigation in Disguise)

11.1 SC Safeguards Against PIL Abuse

11.2 PIL in Other Countries

Part D — National Judicial Council (Proposed) & Appointments

12. Background — Three Judges Cases & Collegium

12.1 NJAC — 99th Constitutional Amendment Act, 2014

13. NJAC Struck Down — Supreme Court Advocates on Record Association v. Union of India (2015)

14. National Judicial Council (NJC) — Proposed Reform

NCRWC Recommendation (National Commission to Review the Working of the Constitution, 2002)

Law Commission Reports

Current Position (Post-2015)

15. Issues with the Collegium System

Problems with Collegium

Arguments for Collegium

15.1 Centre vs SC Standoff on MoP (2016–2026)

16. Prelims PYQs

17. Mains PYQs

18. 15-Minute Revision Box

Must-Remember — Judicial Review, Activism, PIL & NJC