Judicial Review, Judicial Activism and Public Interest Litigation

Judicial review

Judicial review is the power of the courts to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments and to declare them void if they violate the Constitution. The doctrine originated in the United States in Marbury v Madison (1803), decided by Chief Justice John Marshall. In India, the Constitution itself confers the power, expressly and implicitly, through several Articles:

• Article 13 – laws inconsistent with Fundamental Rights are void.
• Articles 32 and 226 – writ jurisdiction to enforce rights.
• Article 131 – federal disputes; Articles 132–136 – appellate powers.
• Articles 245 and 246 – distribution of legislative powers, which courts police.
• Article 372 – continuance of pre-constitutional laws subject to the Constitution.

In Kesavananda Bharati (1973), Minerva Mills (1980) and L. Chandra Kumar (1997) the Supreme Court declared judicial review a basic feature that cannot be taken away even by constitutional amendment.

Grounds of judicial review: a law can be challenged if it (1) infringes Fundamental Rights (Part III); (2) is outside the competence of the authority that framed it (federal division under the Seventh Schedule); or (3) is repugnant to constitutional provisions. Executive action can also be reviewed for illegality, irrationality and procedural impropriety (the GCHQ grounds from English law), and for proportionality where rights are affected.

Scope of judicial review in India vs the US: India's is narrower in theory because Article 21 uses "procedure established by law", not "due process of law". However, after Maneka Gandhi (1978) the Indian Court effectively reviews the fairness of laws as well – an approach close to substantive due process.

Doctrines used in judicial review:

• Pith and substance – the true nature of a law determines which list it falls in; incidental encroachment on another list is allowed.
• Colourable legislation – what cannot be done directly cannot be done indirectly.
• Severability, eclipse and harmonious construction.
• Presumption of constitutionality – the burden is on the challenger.
• Reading down – narrowing a provision's meaning to save it.
• Prospective overruling – first applied in Golaknath (1967): a new interpretation applies only to future cases.

Judicial activism

Judicial activism refers to the proactive role of courts in protecting citizens' rights and promoting justice in society – especially where the other branches fail. The term is distinct from judicial review, which is a specific power; activism refers to the approach of using that power expansively. In India it began in the mid-1970s, led by Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai.

Instruments of activism: expansive interpretation of Article 21; liberal locus standi through PIL; guidelines that fill legislative gaps (Vishaka 1997 on sexual harassment, D.K. Basu 1997 on arrest, Prakash Singh 2006 on police reforms, Lalita Kumari 2013 on mandatory FIR registration); appointment of court commissioners and expert committees; continuing mandamus (Vineet Narain 1997; T.N. Godavarman forest case from 1995, where the Court has supervised forest policy for decades); and the use of Article 142 for complete justice.

Judicial overreach is the term for activism that crosses into the domain of the legislature or executive – for example, directions on highway liquor bans (2016, later modified), the earlier mandatory national anthem in cinemas (2016, made optional in 2018), detailed orders running administrative functions, or creating offices and policies without legislative backing. Judicial restraint is the opposite approach – courts defer to elected branches on policy, intervening only where there is a clear constitutional violation.

Arguments for activism: protects rights of the poor and voiceless; fills gaps where the legislature fails to act; enforces accountability (2G spectrum case, coal block allocation case, 2014); and makes rights real. Arguments against: violates separation of powers; courts lack expertise and resources to implement policy; judges are not democratically accountable; inconsistent and unpredictable orders; and it may make other institutions lazy. The balance lies in constitutional morality and institutional comity – each organ respecting the others' domains.

Public interest litigation

PIL means litigation filed in a court for the protection of public interest – for example, pollution, terrorism, road safety or bonded labour – by any public-spirited person, not necessarily the aggrieved party. The concept came from the United States (the 1960s), where it provided legal representation to unrepresented groups. In India it is a judicial innovation, also called Social Action Litigation or Class Action.

Milestones: Hussainara Khatoon (1979) – undertrial prisoners in Bihar; the case was filed on the basis of newspaper reports, and the Court ordered the release of around 40,000 undertrials and recognised the right to speedy trial. S.P. Gupta (1981) – Justice Bhagwati articulated the liberal locus standi principle. Bandhua Mukti Morcha (1984) – bonded labour; a letter treated as a writ petition. M.C. Mehta cases – Oleum gas leak (1986, absolute liability), Ganga pollution, Taj Trapezium and CNG for Delhi buses (1998–2002).

Principles: relaxed locus standi; non-adversarial process; court may appoint commissioners; procedural rules flexible; relief may be creative (compensation, guidelines). Guidelines against misuse – State of Uttaranchal v Balwant Singh Chaufal (2010): courts must verify the credentials of the petitioner and the bona fides of the petition, and impose costs for frivolous PILs; the Court has also set up PIL cells to screen letter petitions.

Matters not entertained as PIL (as per Supreme Court guidelines): landlord–tenant disputes, service matters, pension and gratuity claims, complaints against government departments except in specific categories, admission to medical and educational institutions, and early hearing of cases pending in courts.

Practice: Mains question

*Distinguish between judicial activism and judicial overreach with examples. How can the judiciary maintain the balance? (250 words)* Define both; give two examples of each; explain separation of powers and checks and balances; suggest judicial self-restraint guidelines, deference on policy, focus on procedural fairness, and dialogue with the legislature (e.g. guidelines that last only "until Parliament legislates" – as in Vishaka, which led to the POSH Act 2013).

Common traps

• Judicial review originated in Marbury v Madison (1803).
• "Judicial review" is a power; "judicial activism" is an approach.
• Prospective overruling was first applied in Golaknath.
• The Oleum gas case (M.C. Mehta, 1986) laid down absolute liability, stricter than the English rule of strict liability.

Judicial review of constitutional amendments and of Ninth Schedule laws

Judicial review also extends to constitutional amendments, but only on the touchstone of the basic structure (Kesavananda Bharati). Examples: the 39th Amendment's clause placing the Prime Minister's election beyond courts was struck down in Indira Gandhi v Raj Narain (1975); parts of the 42nd Amendment were struck down in Minerva Mills (1980); and the 99th Amendment (NJAC) in 2015. In I.R. Coelho (2007) a nine-judge bench held that laws placed in the Ninth Schedule after 24 April 1973 (the date of the Kesavananda judgment) can be tested against the basic structure, including the essence of Articles 14, 19 and 21.

Practice: check your understanding

1. *Can courts review the President's satisfaction for emergency under Article 356?* Yes – S.R. Bommai (1994) held that the proclamation is subject to judicial review on grounds such as mala fides or irrelevant material.
2. *What is the difference between a PIL and an ordinary writ petition?* A PIL can be filed by any public-spirited person for the public interest; an ordinary writ needs a personally aggrieved petitioner.
3. *Why is "institutional comity" important?* Because each organ depends on the others' cooperation; courts that respect legislative and executive spheres keep their own authority credible.