Judicial Review, Judicial Activism & PIL (UPSC Polity)
Judicial Review — Meaning & Place in the Constitution
🎯 Exam priority: High-yield. This trio — judicial review, judicial activism, and PIL — is how the Court becomes a living check on the other organs. Prelims loves the Ninth Schedule / I.R. Coelho line, due process vs procedure established by law, locus standi, and PIL misuse guidelines. Mains asks whether activism is democracy's saviour or a separation-of-powers problem. Master definitions, Articles, landmark cases and the activism–restraint contrast.
The last article covered the Supreme Court as an institution. This one covers its most politically charged powers and styles: reviewing laws, pushing other organs to act, and opening the courtroom to public causes.
What is judicial review?
Judicial review is the judiciary's power to examine whether legislative enactments and executive orders of the Union and the States conform to the Constitution. If they are ultra vires (beyond legal power / violative of the Constitution), the court can declare them illegal, unconstitutional and null and void — they cannot be enforced.
The doctrine was first clearly propounded in the USA in Marbury v. Madison (1803). In India the Constitution itself confers the power on both the Supreme Court and the High Courts. The Supreme Court has also held that judicial review is part of the basic structure of the Constitution (so it cannot be taken away by amendment).
One useful classification splits review into three: (1) of constitutional amendments; (2) of legislation (Parliament, State Legislatures, and subordinate/delegated legislation); (3) of administrative action of Union/State authorities.
Landmark uses include Golaknath (1967), Bank Nationalisation (1970), Privy Purses Abolition (1970), Kesavananda Bharati (1973), Minerva Mills (1980), and later Ninth Schedule cases.
Why Review Exists, Key Articles & Three Grounds
Why review exists, which Articles carry it, and on what grounds a law can be struck down.
Why judicial review is needed
To uphold the supremacy of the Constitution (a statute is valid only if it conforms to the Constitution).
To maintain federal equilibrium (balance between Centre and States when lists and powers collide).
To protect the Fundamental Rights of citizens.
Constitutional hooks (the phrase "judicial review" is not used)
The Constitution never prints the words "judicial review", but many Articles make the power real. Core ones:
Article | What it does for review |
13 | Laws inconsistent with Fundamental Rights are void |
32 | Move the Supreme Court; writs to enforce Fundamental Rights |
131–136, 143 | Original / appellate / special leave / advisory routes that let constitutional questions reach the Court |
226 | High Court writs for Fundamental Rights and other purposes |
227 | High Court superintendence over courts/tribunals in its territory (not military) |
245–246, 251, 254 | Territorial and subject-matter competence; Centre prevails in listed conflicts |
372 | Continuance of pre-Constitution laws — still subject to constitutional limits |
Three grounds to challenge a law or order
(a) It infringes Fundamental Rights (Part III).
(b) It is outside the competence of the authority that made it (wrong list / no power).
(c) It is repugnant to other constitutional provisions.
Due Process Contrast & the Ninth Schedule
India vs USA on the width of review, and the Ninth Schedule story — both are high-frequency Prelims themes.
Procedure established by law vs due process of law
Article 21's text uses "procedure established by law": classically, the court asks whether a procedure has a legal basis and whether the authority had power — a comparatively narrower review than the US.
The US standard of "due process of law" lets courts void laws on substantive and procedural grounds of unreasonableness — which is why American review is often called wider, even a "third chamber" of the legislature by critics.
India is neither pure American judicial supremacy nor pure British parliamentary supremacy. Written Constitution + federal division of powers + Fundamental Rights + judicial review = a synthesis of limited judicial supremacy and limited parliamentary supremacy. Later case law (notably Maneka Gandhi, 1978) read fairness, reasonableness and non-arbitrariness into Article 21 — so practice is richer than the bare phrase, but Prelims still tests the textual contrast.
Ninth Schedule and Article 31B
The First Amendment (1951) added Article 31B and the Ninth Schedule. Acts and regulations placed in the Ninth Schedule were meant to be saved from challenge for violating Fundamental Rights — originally to protect land reform / zamindari abolition (ending large landlord estates). The Schedule began with 13 entries; the standard text records growth to about 282.
Kesavananda Bharati (1973): even Ninth Schedule laws can be tested against the basic structure.
Waman Rao (1980): laws put into the Ninth Schedule after 24 April 1973 (the Kesavananda judgement date) are valid only if they do not damage the basic structure.
I.R. Coelho (2007): no blanket immunity. Judicial review is a basic feature. Laws inserted in the Ninth Schedule after 24 April 1973 can be struck down if they violate Fundamental Rights that form part of the basic structure (especially the equality–freedom–life cluster around Articles 14, 15, 19 and 21).
Judicial Activism vs Judicial Restraint
Activism is a style of using judicial power — not a separate Article. Contrast it with restraint.
Meaning of judicial activism
Judicial activism (also called judicial dynamism) is the judiciary's proactive role in protecting rights and promoting justice — asserting itself so that the legislature and executive discharge their constitutional duties. It is the antithesis of judicial restraint (self-control: say what the law is; leave law-making to elected organs; do not colour judgements with personal policy agendas).
The term was coined in the USA (1947). In India it took shape from the mid-1970s, associated with judges such as V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai. Its most visible tool is Public Interest Litigation (next sections) and a relaxed locus standi (who may sue).
Why courts become activist (typical justifications)
Near collapse of responsible government when legislature/executive fail — citizens lose confidence and turn to courts.
Pressure to protect rights when other organs are inert.
Judicial enthusiasm for social reform in changing times.
Legislative vacuum — areas with little or no statute, so courts fill gaps with directions (sometimes criticised as judicial legislation).
Liberalisation of locus standi and growth of PIL.
Activism vs restraint (exam contrast)
Point | Judicial activism | Judicial restraint |
Core idea | Proactive protection of rights; push other organs | Limited role; defer to legislature/executive |
Precedent | May depart for progressive social policy | Strict adherence to precedent and original intent |
Typical worry | Usurpation / judicial overreach | Under-protection of rights when other organs fail |
Linked device in India | PIL, continuing mandamus, detailed directions | Narrow standing, case-by-case adjudication |
Common apprehensions about activism: ideological (usurpation of legislature/executive), epistemic (do judges know enough economics/science?), management (more arrears), and legitimation (orders that the executive will not or cannot obey).
Public Interest Litigation — Meaning & Features
PIL is the everyday face of activism for Prelims and Mains alike.
Meaning of Public Interest Litigation
Public Interest Litigation (PIL) began in the USA in the 1960s to represent groups the ordinary legal market ignored (poor, consumers, minorities, environmentalists). In India it emerged in the early 1980s as an outcome of judicial activism — pioneers include Justices Krishna Iyer and Bhagwati. Also called Social Action Litigation (SAL), Social Interest Litigation (SIL) or Class Action Litigation (CAL).
Traditional locus standi (standing): only the person whose own right is infringed may sue. PIL is the major exception — any public-spirited citizen or organisation with sufficient interest may move the court for people who, because of poverty, ignorance or disadvantage, cannot approach the court themselves.
The Court has treated even a letter or telegram as a petition in suitable cases (epistolary jurisdiction — jurisdiction started by a letter). Procedure and pleading rules are relaxed when large-scale rights and State duties are at stake.
Purposes: vindicate the rule of law; realise constitutional promises for the disadvantaged; enforce collective rights rather than a private duel between two parties.
Features (how PIL differs from ordinary suits)
Strategic arm of the legal aid movement — justice for the poor ("low visibility" humanity), not a private duel.
Not ordinary adversarial litigation (one party claiming relief against another who resists). It vindicates public interest / collective, social or "diffused" rights.
Violations of constitutional and legal rights of large numbers of disadvantaged people should not go unnoticed.
It is a cooperative effort among petitioner, State/public authority and Court to secure rights and social justice — the Court is more assertive and creative than in a private suit.
Procedure may be flexible, but it must still be a procedure known to judicial tenets (not arbitrary process).
Governing principles (Supreme Court)
Under Articles 32 and 226, any interested person may sue for the disadvantaged; the Court is bound to protect their Fundamental Rights and direct the State to keep constitutional promises.
Letters/telegrams may be treated as PIL; pleading and procedural rules are relaxed for large-scale rights vs State duties.
Mass injustice can trigger Articles 14 (equality) and 21 (life and personal liberty), read with human-rights fair-trial norms.
Once the Court is prima facie satisfied of a rights violation of a disadvantaged group, the State should not derail the case on maintainability technicalities alone.
Res judicata (the rule that a finally decided matter should not be re-litigated between the same parties) applies to PIL only as the nature of the petition and facts require — not mechanically.
PIL Scope, Misuse Guidelines & Why UPSC Asks This
What kinds of petitions the Court will ordinarily take, what it refuses, and how it polices misuse.
Ordinarily entertained as PIL (SC guidelines, refined 1988 / 1993 / 2003)
Bonded labour; neglected children; non-payment of minimum wages / casual-worker exploitation and Labour-law violations (not pure individual service cases).
Jail petitions: harassment, premature release after long incarceration (including after 14 years), death in jail, transfer, personal bond, speedy trial as a Fundamental Right.
Police: refusal to register a case, harassment, death in custody.
Atrocities on women (dowry harassment, bride-burning, rape, murder, kidnapping, etc.).
Harassment/torture of villagers — especially Scheduled Castes, Scheduled Tribes and economically backward classes — by co-villagers or police.
Environment and public health: pollution, ecological balance, drugs, food adulteration, heritage/culture/antiques, forests and wildlife, and other large public-importance matters.
Riot victims; family pension matters of the listed public character.
Ordinarily NOT entertained as PIL
Landlord–tenant disputes; ordinary service / pension / gratuity matters; many individual complaints against departments or local bodies that are not in the public-cause list above; and other private adversarial claims dressed up as public interest.
Checking misuse — not "Publicity / Politics / Paisa Interest Litigation"
The Court has warned that PIL is not a pill for all wrongs. It was meant for the weak and disadvantaged, filed by a public-spirited person on their behalf. Misuse guidelines include: encourage genuine PIL and curb those filed for extraneous considerations; High Courts should frame clear PIL rules; verify the petitioner's credentials and the petition's contents prima facie; insist on substantial public interest; prioritise gravity and urgency; ensure no personal gain or oblique motive; and discourage busybodies and meddlesome interloper petitions.
Courts may impose costs for frivolous PILs. Keep the tool for genuine public harm — not private score-settling or publicity.
Further Reading
Standard NCERT-level texts and reference books on the Indian Constitution and Polity (any UPSC reading list).
The Constitution of India (Bare Act) — Articles 13, 32, 131–136, 143, 226–227, and Article 31B with the Ninth Schedule.
Why UPSC asks this
Ninth Schedule + I.R. Coelho tests whether you know basic structure still binds "immunised" laws.
Due process vs procedure established by law is a one-line Prelims discriminator.
Locus standi / PIL features / entertainable vs refused categories / misuse guidelines appear in both Prelims and Mains questions on judicial overreach.
Test Yourself: Practice Questions & PYQs
Judicial review, activism and PIL practice — definitions, Articles, Ninth Schedule, due process contrast, locus standi and misuse guidelines. Then Prelims-linked PYQs.
Practice Questions
Q1. Judicial review means the power of the judiciary to:
(a) Appoint judges of High Courts without the collegium
(b) Advise the President under Article 143 only
(c) Examine the constitutionality of laws and executive orders and strike down those that are ultra vires
(d) Dissolve State Assemblies during President's Rule
Show answer
Answer: (c) — Core definition: examine constitutionality; declare ultra vires laws null and void.
Q2. Which Article expressly declares inconsistent laws void for violating Fundamental Rights?
(a) Article 136
(b) Article 13
(c) Article 32
(d) Article 143
Show answer
Answer: (b) — Article 13 is the direct voiding clause for FR-inconsistent laws; Article 32 is the enforcement remedy.
Q3. A legislative Act may be challenged in Indian courts on which grounds?
(a) Only after a joint sitting
(b) Only if it is unpopular
(c) Infringement of Fundamental Rights; lack of legislative competence; repugnance to the Constitution
(d) Only if the President refuses assent
Show answer
Answer: (c) — Three classic grounds of judicial review of legislation/executive orders.
Q4. Compared with the classic US 'due process of law' standard, India's textual 'procedure established by law' is generally described as:
(a) Identical to the US Fifth Amendment
(b) Narrower in the classical textbook contrast, though later case law has enriched Article 21
(c) Abolished by the 42nd Amendment
(d) Wider in every respect
Show answer
Answer: (b) — Prelims still tests the textual contrast; Maneka Gandhi softens practice without erasing the phrase.
Q5. Article 31B and the Ninth Schedule were added by:
(a) The 1st Amendment (1951)
(b) The 44th Amendment
(c) The 42nd Amendment
(d) The 24th Amendment
Show answer
Answer: (a) — First Amendment 1951 — originally to protect land-reform laws.
Q6. After I.R. Coelho (2007), laws placed in the Ninth Schedule after 24 April 1973:
(a) Can be reviewed only by the President
(b) Can be reviewed and struck down if they damage the basic structure / violate basic-structure Fundamental Rights
(c) Are automatically void
(d) Enjoy absolute immunity forever
Show answer
Answer: (b) — No blanket immunity; judicial review is itself a basic feature.
Q7. Judicial activism is best described as:
(a) The exclusive power of the Lok Sabha to remove judges
(b) The rule that judges must never interpret the Constitution
(c) Advisory opinions under Article 143
(d) A proactive judicial role to protect rights and push other organs to perform constitutional duties
Show answer
Answer: (d) — Activism = proactive/assertive role; antithesis of restraint.
Q8. Judicial restraint emphasises that judges should:
(a) Rewrite statutes to match personal policy preferences
(b) Replace elections with court orders
(c) Largely defer law-making to legislature and executive and stick closely to precedent / original intent
(d) Ignore Fundamental Rights
Show answer
Answer: (c) — Restraint = limited role; leave policy to elected organs.
Q9. Public Interest Litigation primarily relaxes:
(a) The retirement age of High Court judges
(b) The oath of the President
(c) Article 368's amendment procedure
(d) The traditional rule of locus standi
Show answer
Answer: (d) — PIL lets public-spirited persons sue for the disadvantaged — exception to strict standing.
Q10. Epistolary jurisdiction in the PIL context means:
(a) Foreign embassies may sue in the Supreme Court as of right
(b) Military courts may hear PILs
(c) Only stamped plaints on watermarked paper are allowed
(d) The Court may treat a letter/telegram as a petition in appropriate public-interest cases
Show answer
Answer: (d) — Letter-as-petition practice associated with early PIL.
Q11. Which is ordinarily NOT a fit subject for PIL under Supreme Court screening guidelines?
(a) Death in police custody
(b) A pure private landlord–tenant money dispute
(c) Environmental pollution affecting large numbers
(d) Bonded labour
Show answer
Answer: (b) — Private adversarial disputes are screened out; public-cause categories are in.
Q12. The Supreme Court has cautioned that PIL should not become:
(a) A tool for the disadvantaged
(b) Legal aid for the poor
(c) A means to enforce Articles 14 and 21 for vulnerable groups
(d) Publicity, politics, private or 'paisa' interest litigation filed for oblique motives
Show answer
Answer: (d) — Misuse guidelines target busybodies and oblique motives while protecting genuine PIL.
UPSC Previous Year Questions (PYQs)
Pattern: meaning of judicial review (2017); Rule of Law features (2018); basic structure + Ninth Schedule / Coelho; Article 13 without naming 'judicial review'; PIL and locus standi; review as basic feature.
Q13. In India, Judicial Review implies: (UPSC Prelims 2017)
(a) the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures
(b) the power of the Judiciary to review its own judgements given earlier in similar or different cases
(c) the power of the Judiciary to review all the legislative enactments against the provisions of the Constitution
(d) the power of the Judiciary to draft constitutional amendments
Show answer
Answer: (c) — Judicial review = testing legislative (and executive) acts against the Constitution. Review of the Court's own earlier judgement is a different power (review/curative petitions).
Q14. Which of the following are regarded as the main features of the 'Rule of Law'? (1) Absence of arbitrary power (2) Equality before law (3) Checks and balances (4) Individual liberty Select the correct answer: (UPSC Prelims 2018 / Dicey-linked — judicial review supports these)
(a) 1 and 2 only
(b) 1, 2, 3 and 4
(c) 1, 2 and 4 only
(d) 2 and 3 only
Show answer
Answer: (c) — Classic Diceyan Rule of Law emphasises absence of arbitrariness, equality before law and individual liberty; 'checks and balances' is more Montesquieu/separation-of-powers vocabulary. Answer: 1, 2 and 4 only.
Q15. Consider the following statements: (1) The basic structure doctrine was first laid down by the Supreme Court of India in Kesavananda Bharati vs State of Kerala (1973). (2) Judicial review of laws included in the Ninth Schedule is barred after I.R. Coelho. Which is/are correct?
(a) 1 only
(b) Both 1 and 2
(c) Neither 1 nor 2
(d) 2 only
Show answer
Answer: (a) — Statement 1 is correct. Statement 2 is false — I.R. Coelho affirms review of post-1973 Ninth Schedule laws.
Q16. The Ninth Schedule to the Constitution of India was added by: (UPSC Prelims pattern)
(a) 44th Amendment
(b) 42nd Amendment
(c) 1st Amendment
(d) 24th Amendment
Show answer
Answer: (c) — First Amendment Act, 1951.
Q17. With reference to the Constitution of India, consider the following statements: (1) Article 13 declares laws inconsistent with Fundamental Rights to be void. (2) Judicial review is expressly defined and named in Article 13. Which is/are correct?
(a) 2 only
(b) 1 only
(c) Neither 1 nor 2
(d) Both 1 and 2
Show answer
Answer: (b) — Article 13 does the voiding work but the Constitution nowhere uses the phrase 'judicial review' as a defined term.
Q18. Which one of the following judgements is related to the immunity of laws in the Ninth Schedule from judicial review after 24 April 1973?
(a) Berubari Union case
(b) S.R. Bommai case
(c) A.K. Gopalan case
(d) I.R. Coelho case
Show answer
Answer: (d) — I.R. Coelho (2007) — also linked to Waman Rao (1980) on the 24 April 1973 cut-off.
Q19. The power of judicial review in India is exercised by:
(a) the Supreme Court only
(b) the High Courts only
(c) the President only
(d) both the Supreme Court and the High Courts
Show answer
Answer: (d) — Both SC (Arts 13, 32, 131–136 etc.) and High Courts (especially Art 226) exercise judicial review.
Q20. Which of the following are the main features of Judicial Review in India? (1) It is the duty of the judiciary to examine the constitutionality of laws (2) It can be exercised by both Supreme Court and High Courts (3) It makes the judiciary superior to the legislature in all policy matters Select the correct answer:
(a) 1, 2 and 3
(b) 1 and 2 only
(c) 1 and 3 only
(d) 2 and 3 only
Show answer
Answer: (b) — 1 and 2 are correct. Review does not make the judiciary a general super-legislature on all policy (3 false).
Q21. Consider the following statements about Public Interest Litigation: (1) It relaxes the traditional rule of locus standi. (2) Only the person whose Fundamental Right is violated can file a PIL. Which is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Show answer
Answer: (a) — PIL exists precisely so that others with sufficient interest can sue for the disadvantaged — statement 2 is the old rule.
Q22. The Supreme Court of India has held that judicial review is:
(a) a basic feature of the Constitution
(b) an ordinary statutory privilege that Parliament may abolish by simple majority
(c) identical to the President's veto
(d) available only against State laws, not Union laws
Show answer
Answer: (a) — Repeated holdings — including in Ninth Schedule / basic structure cases — treat judicial review as basic structure.
Mains Practice Questions
Use these to frame full-length answers. You don't have to answer one exactly — they show the angles UPSC tests, so let them guide which points you cover.
Define judicial review and state the three grounds on which a law may be challenged.
Explain how Article 31B and the Ninth Schedule interact with the basic structure doctrine after I.R. Coelho.
Distinguish 'procedure established by law' from 'due process of law'.
What is judicial activism? Contrast it with judicial restraint.
Explain locus standi and how PIL relaxes it.
What safeguards has the Supreme Court indicated against misuse of PIL?