Judicial Review, Judicial Activism, PIL & National Judicial Council

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.

2. Constitutional Basis of Judicial Review in India

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.

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).

4. India vs USA — Judicial Review Compared

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.

6. Key Examples of Judicial Activism in India

7. Judicial Activism vs Restraint vs Overreach — The Spectrum

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.

9. Features of PIL

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

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).

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:

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.

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

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).

16. Prelims PYQs

17. Mains PYQs

18. 15-Minute Revision Box