The Role of Judicial Review and Public Interest Litigation in India

The Indian Constitution is often called a living document, but a document only stays alive if someone protects it from being twisted out of shape. That guardian is the judiciary. Through two powerful tools – judicial review and Public Interest Litigation (PIL) – the courts ensure that no law, however popular, and no government action, however powerful, can override the values written into the Constitution. Together, these instruments have shaped the balance of power between Parliament, the executive, and the judiciary, and they have brought justice within reach of citizens who once had no way to be heard.

What is judicial review? 🔗

Judicial review is the power of the courts to examine whether laws passed by the legislature and actions taken by the executive are consistent with the Constitution. If a law or an action violates the Constitution, the court can declare it void. This makes the judiciary the final interpreter of the Constitution and a check on the other two branches of government.

The concept did not originate in India. It was first established in the United States in the famous case of Marbury v. Madison in 1803, where Chief Justice John Marshall asserted that the Supreme Court had the power to declare laws unconstitutional. The American Constitution did not expressly grant this power; the Court derived it from the logic of constitutional supremacy.

The Indian Constitution went a step further. Instead of leaving judicial review to be inferred, it built the power directly into the text. The judiciary’s authority to strike down unconstitutional laws flows from the Constitution itself, which is why it cannot easily be questioned as judicial overreach.

The constitutional basis of judicial review 🔗

Several provisions of the Constitution provide the foundation for judicial review. Article 13 declares that any law inconsistent with fundamental rights shall be void, effectively authorising courts to test laws against Part III of the Constitution. Article 32 guarantees citizens the right to approach the Supreme Court directly to enforce their fundamental rights, while Article 226 empowers the High Courts to issue writs for the enforcement of rights and for other purposes.

These provisions give both the Supreme Court and the High Courts the authority to review legislative and executive actions. The result is a system where the Constitution, not Parliament, is supreme, and the courts act as the umpires who enforce that supremacy.

The battle over amending the Constitution 🔗

The most dramatic chapter in the story of judicial review was a long tug-of-war between Parliament and the Supreme Court over a single question: can Parliament amend any part of the Constitution, including fundamental rights? This conflict produced some of the most important judgments in Indian legal history.

The Golaknath case (1967) 🔗

The clash came to a head in I.C. Golaknath v. State of Punjab. The Golaknath family challenged the Punjab Security of Land Tenures Act, which had declared part of their land surplus under land ceiling laws. The Act had been placed in the Ninth Schedule by the 17th Constitutional Amendment, which shielded it from judicial review. The family argued this violated their fundamental right to property.

The central legal question was whether Parliament could amend fundamental rights under Article 368, or whether such amendments were invalid under Article 13. In a narrow 6:5 majority, the Supreme Court held that Parliament could not amend or take away fundamental rights. It ruled that a constitutional amendment was “law” within the meaning of Article 13 and was therefore subject to the same limitations as ordinary legislation.

To avoid throwing past amendments into chaos, the Court introduced the doctrine of prospective overruling, borrowed from American law, which meant the ruling would apply only to future amendments. Golaknath placed citizens’ rights above the amending power of Parliament and strengthened the judiciary’s role as a guardian of liberties. However, critics argued that it made the Constitution too rigid and limited Parliament’s ability to carry out social and economic reform.

The Kesavananda Bharati case (1973) and the basic structure 🔗

The government responded to Golaknath with the 24th, 25th, and 29th Amendments, which sought to restore Parliament’s power to amend any part of the Constitution. These amendments were challenged in Kesavananda Bharati v. State of Kerala by the head of a Hindu mutt in Kerala, who had challenged the state’s land reform laws affecting religious property.

The case was heard by a bench of 13 judges, the largest in the Supreme Court’s history, over 68 days. In a wafer-thin 7:6 verdict delivered on 24 April 1973, the Court arrived at a careful middle path. It overruled Golaknath and held that Parliament does have wide powers to amend any part of the Constitution under Article 368. But it added a crucial limitation: Parliament cannot alter or destroy the “basic structure” of the Constitution.

This was the birth of the basic structure doctrine. The Court held that certain core features – such as the supremacy of the Constitution, the rule of law, the separation of powers, federalism, and the power of judicial review itself – form the essence of the Constitution and lie beyond Parliament’s reach. Significantly, the Court declared that judicial review is itself part of this basic structure and cannot be taken away by any amendment.

Why the basic structure doctrine matters 🔗

The basic structure doctrine has become the bedrock of constitutional law in India. It strikes a balance between two competing needs: allowing the Constitution to adapt to changing times through amendments, while preserving the fundamental values that give it meaning. It ensures the Constitution remains a living document without losing its identity.

The doctrine has served as a check on legislative overreach in later cases too. It was used to protect democracy as a basic feature in the Indira Gandhi election case of 1975, and it reaffirmed the limits on Parliament’s amending power in the Minerva Mills case of 1980. Even today, whenever a major constitutional amendment is challenged, the basic structure doctrine is the test the courts apply.

Public Interest Litigation: opening the doors of justice 🔗

Judicial review protects the Constitution, but for a long time it protected only those who could actually reach the courts. Under the traditional rule of locus standi, only a person whose own rights had been directly violated could approach the court. This shut out the vast majority of poor, illiterate, and marginalised people who were unaware of their rights or unable to afford a lawyer. Public Interest Litigation changed this completely.

What is PIL? 🔗

Public Interest Litigation is litigation filed in a court not for the private interest of the petitioner but for the protection of a larger public interest. Its defining feature is the relaxation of the rule of locus standi. Under PIL, any public-spirited citizen or social action group can approach the court on behalf of those who cannot do so themselves because of poverty, helplessness, or social and economic disadvantage.

Interestingly, PIL draws on a principle with deep roots in Roman jurisprudence, where actions could be brought for public wrongs that affected the community as a whole rather than just one individual. The idea was further influenced by developments in the United States, where similar litigation was used to address racial discrimination and environmental protection.

The origins of PIL in India 🔗

PIL emerged in India in the late 1970s and early 1980s, in the period following the Emergency, when the courts began to recognise the need to intervene in matters affecting the public at large. The movement is credited largely to the judicial activism of Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, who saw the courts as instruments for delivering social justice rather than mere arbiters of private disputes.

One of the first instances of PIL was Hussainara Khatoon v. State of Bihar (1979), which exposed the plight of undertrial prisoners languishing in Bihar’s jails for periods longer than the maximum sentence for their alleged offences. Justice Bhagwati held that access to justice and a speedy trial were part of the right to life under Article 21, and ordered the release of these prisoners.

The concept was fully developed in S.P. Gupta v. Union of India (1981), known as the Judges’ Transfer Case. The Supreme Court held that any member of the public acting in good faith could invoke the writ jurisdiction of the High Courts under Article 226 or the Supreme Court under Article 32 to seek a remedy for the violation of legal or constitutional rights of those unable to approach the court themselves.

Epistolary jurisdiction and new remedies 🔗

The courts went even further to make justice accessible. They developed what is called epistolary jurisdiction, where the court’s attention could be drawn simply by writing a letter or sending a telegram, which would then be treated as a petition. The courts also fashioned new kinds of relief, such as awarding interim compensation to victims of governmental lawlessness – a sharp departure from the traditional approach where interim relief only preserved the existing situation pending a final decision.

PIL, equality, and dignity under Articles 14 and 21 🔗

PIL is not just a procedural innovation; it is deeply tied to the constitutional promise of equality and dignity. Article 14 guarantees equality before the law and equal protection of the laws. For this guarantee to be real, justice must be equally accessible. PIL makes equality before the law meaningful by ensuring that the absence of money or knowledge no longer prevents a person from seeking justice.

Equally important is Article 21, which guarantees the right to life and personal liberty. Over the years, the courts have interpreted this right expansively to include the right to live with dignity, the right to a clean environment, the right to legal aid, and the right to a speedy trial. Most PIL cases of the early years dealt precisely with the enforcement of the fundamental rights of marginalised and deprived sections of society. By addressing public wrongs and protecting these rights, PIL has turned constitutional promises into lived realities for millions.

The two tools working together 🔗

Judicial review and PIL are best understood as complementary. Judicial review defines what the courts can examine – the constitutional validity of laws and actions. PIL expands who can bring matters before the courts and on whose behalf. One protects the integrity of the Constitution from above; the other extends its reach down to the most vulnerable.

Without judicial review, the basic structure of the Constitution could be amended away by transient majorities. Without PIL, the protections of the Constitution would remain locked behind the high walls of cost, distance, and legal complexity. Together, they have made the judiciary a powerful protector of both the Constitution and the people it serves.

This power is not without criticism. Some argue that judicial review and PIL have at times led to judicial overreach, with courts straying into matters of policy that belong to the legislature and executive. Others point out that PIL, originally meant for the marginalised, is now sometimes misused for private or political ends. These concerns are real and form an ongoing debate about where the limits of judicial power should lie.

What do you think? Does the basic structure doctrine give unelected judges too much power over an elected Parliament, or is it an essential safeguard for democracy? And as PIL faces accusations of misuse, how can the courts keep it true to its original purpose of serving the weakest in society?

References

1. https://constitution.congress.gov/the-constitution/supreme-court-case-library/marbury-v-madison/
2. https://www.legalserviceindia.com/legal/article-3597-judicial-review.html
3. https://www.civilsdaily.com/news/what-is-the-golaknath-v-state-of-punjab-1967-case/
4. https://www.scobserver.in/cases/his-holiness-kesavananda-bharati-sripadagalvaru-v-state-of-kerala-the-fundamental-rights-case-background/
5. https://lawbhoomi.com/public-interest-litigation/
6. https://vajiramandravi.com/upsc-exam/public-interest-litigation/