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Judicial review, judicial activism and public interest litigation

Judiciary · Part 3 / 3 · Fact-checked on 15 October 2026 · how we check

Written with AI from the sources listed at the bottom of this page, then fact-checked by a separate AI.

What judicial review is and where the Constitution grounds it, how the basic structure doctrine grew from Shankari Prasad to the NJAC case, what judicial activism and restraint mean, and how public interest litigation opened the courts to people who could not reach them.

Parts 1 and 2 described the courts: who sits in them and which cases reach them. This last part asks what the courts do to the other two organs of the State. The answer is judicial review: the power of the courts to test a law, an executive order or even a constitutional amendment against the Constitution, and to declare it void if it fails the test. Around this power three ideas have grown that Prelims returns to again and again. The basic structure doctrine limits how far Parliament can amend the Constitution. Judicial activism describes the willingness of judges to step in where the other organs fail. Public interest litigation lets almost anyone bring a public wrong before a court.

The words judicial review do not appear in the Constitution, but the Constitution is built so that the power must exist. A written constitution sets limits on every organ of the State, and someone has to say when a limit has been crossed. In Marbury v. Madison (1803) the Supreme Court of the United States had already held that a court must refuse to apply a law that conflicts with the written constitution. Indian courts review three kinds of state action: laws made by Parliament and the State legislatures; executive and administrative action, such as a ministry's order; and amendments to the Constitution itself. A law that fails the test is void to the extent of the conflict, and under Article 141 the Supreme Court's declaration binds every court in India.

Several Articles give judicial review its footing. Article 13 says that any law inconsistent with or in derogation of the Fundamental Rights is void to the extent of the inconsistency, and it counts ordinances, orders, bye-laws, rules, regulations and notifications as 'law'. Articles 32 and 226 let the Supreme Court and the High Courts issue writs to enforce those rights. Article 246, read with the Seventh Schedule, divides the power to make laws between the Union and the States, so a court can strike down a law made on a subject outside the legislature's list. Articles 131 to 136 give the Supreme Court jurisdiction over disputes between governments and over appeals in which such questions are argued. Suppose a State legislature passes a law on banking, which is a Union List subject: the law can be declared void for want of legislative competence, even if it harms no Fundamental Right at all.

Indian judicial review sits between two models. In Britain, Parliament is sovereign and no court can set aside an Act of Parliament. In the United States, courts test laws against a 'due process of law' clause, which lets judges ask whether a law is fair and reasonable. India chose a middle path. Article 21 uses the narrower phrase 'procedure established by law', but in Maneka Gandhi v. Union of India (1978) the Supreme Court held that such a procedure must itself be fair, just and reasonable, which brought Indian review close to the American model. Judicial review also has limits. Courts ask whether a policy is lawful, not whether it is wise. Article 122 bars courts from questioning proceedings in Parliament on the ground of irregular procedure. Laws placed in the Ninth Schedule under Article 31B are protected from challenge for violating Fundamental Rights, though, as the next paragraphs show, not from the basic structure test. The power of review is itself beyond Parliament's reach: in L. Chandra Kumar v. Union of India (1997) the Court held that judicial review by the Supreme Court and the High Courts is part of the basic structure.

The basic structure doctrine was born in a long contest between Parliament and the Supreme Court over the Amendment of Fundamental Rights. In Shankari Prasad v. Union of India (1951) the Court held that Article 368 lets Parliament amend any part of the Constitution, Fundamental Rights included, and upheld the First Amendment. In I.C. Golaknath v. State of Punjab (1967) an eleven-judge bench reversed this and held that Parliament could not take away or abridge a Fundamental Right. Parliament answered with the 24th Amendment (1971), which declared that Article 13 does not apply to amendments made under Article 368. In Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by thirteen judges by a majority of seven to six, the Court upheld the 24th Amendment and overruled Golaknath, but added a limit: Parliament can amend any provision, yet it cannot use that power to destroy the basic structure of the Constitution.

The doctrine has since been used both to strike down amendments and to uphold them. In Indira Nehru Gandhi v. Raj Narain (1975) the Court struck down clause (4) of Article 329A, inserted by the 39th Amendment, which had placed the election of the Prime Minister beyond the reach of the courts; free and fair elections were held to be part of the basic structure. In Minerva Mills v. Union of India (1980) it struck down clauses (4) and (5) that the 42nd Amendment had added to Article 368 to bar courts from reviewing amendments and to declare Parliament's amending power unlimited, holding that a limited amending power and judicial review are themselves basic features. Waman Rao v. Union of India (1981) fixed 24 April 1973, the day Kesavananda was decided, as the cut-off: laws placed in the Ninth Schedule before that date stay protected, while later additions can be tested against the basic structure. I.R. Coelho v. State of Tamil Nadu (2007), decided by nine judges, confirmed this. In Supreme Court Advocates-on-Record Association v. Union of India (2015), the 99th Amendment creating the National Judicial Appointments Commission was struck down for violating the independence of the judiciary.

The Constitution nowhere lists the basic features; the Supreme Court identifies them case by case. Features recognised in its judgments include the supremacy of the Constitution, the republican and democratic form of government, the secular and federal character of the Constitution, the separation of powers, judicial review, free and fair elections, the rule of law, the independence of the judiciary, the limited power to amend and the balance between Fundamental Rights and the Directive Principles. Secularism and federalism were reaffirmed as basic features in S.R. Bommai v. Union of India (1994). Two points are easy to confuse. First, the doctrine was developed to test constitutional amendments under Article 368; ordinary laws are mainly tested against the express provisions of the Constitution. Second, the doctrine does not freeze any single Article: Parliament may change a provision as long as the basic feature behind it survives.

judicial activism describes judges reading their powers broadly to protect rights or to fill gaps that the legislature and the executive have left open. Its opposite, judicial restraint, means judges defer to elected bodies on questions of policy and interfere only when a clear legal limit has been crossed. After Maneka Gandhi (1978), Article 21 grew from a guard against arbitrary arrest into a source of many rights, such as the right to a speedy trial, to free legal aid and to a clean environment. In Vishaka v. State of Rajasthan (1997) the Court, finding no law on sexual harassment at the workplace, framed guidelines that bound employers until Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Article 142, which lets the Supreme Court pass any order needed to do complete justice, is often its tool. Critics use the term judicial overreach for the excesses: when courts make policy, they act without the accountability that elected bodies face, and the separation of powers suffers.

public interest litigation (PIL) changed who may approach the courts. Normally only a person whose own right is affected, a person with locus standi, may file a case. From the late 1970s the Supreme Court relaxed this rule: where the people harmed are too poor, too weak or too unaware to come to court themselves, any public-spirited person or organisation acting in good faith may come on their behalf. Hussainara Khatoon v. Home Secretary, State of Bihar (1979), based on newspaper reports of undertrial prisoners who had spent longer in Bihar's jails than the maximum sentence for their alleged offences, led to the release of thousands and to the recognition of speedy trial as part of Article 21. In S.P. Gupta v. Union of India (1981) the Court set out the relaxed rule of standing in clear terms. Judges even treated letters and postcards as writ petitions, a practice known as epistolary jurisdiction. A PIL is filed under Article 32 in the Supreme Court or under Article 226 in a High Court, and it is aimed at the State or a public authority, not at a purely private dispute.

Through PIL, courts have dealt with problems that ordinary litigation rarely reached. In the series of cases filed by the lawyer M.C. Mehta, the Supreme Court acted on the pollution of the Ganga, on the surroundings of the Taj Mahal and on Delhi's air, and in the oleum gas leak case (1986) it laid down the rule of absolute liability for enterprises engaged in hazardous activities. The same openness invites misuse: petitions filed for publicity, to settle private or political scores, or to stall projects. In State of Uttaranchal v. Balwant Singh Chaufal (2010) the Supreme Court laid down guidelines asking courts to verify the petitioner's credentials and good faith, to make sure that a real public interest is involved, and to discourage petitions filed for personal gain or oblique motives, if necessary by imposing costs.

The pieces of this part fit together as a chain. Articles 13, 32 and 226 give the courts the power of judicial review. The basic structure doctrine carries that review to constitutional amendments, so that no majority, however large, can rewrite the Constitution's identity. PIL opens the courts to people who could never have reached them on their own. Judicial activism describes how boldly judges use these tools, and judicial restraint how carefully. Each link also has a check: courts must stay with legality rather than policy, PIL must serve a genuine public interest, and the basic features are not a fixed list but are identified by the Court in its judgments.

Exam traps

• The phrase 'judicial review' does not appear in the Constitution; the power rests on Articles 13, 32, 226, 131–136 and 246, among others.
• The basic structure doctrine comes from Kesavananda Bharati (1973), not from Golaknath (1967); Golaknath had barred any amendment that abridged Fundamental Rights.
• Kesavananda was decided by 13 judges by 7:6; Golaknath by 11 judges.
• Minerva Mills (1980) struck down clauses (4) and (5) of Article 368 added by the 42nd Amendment, not by the 44th.
• The 24 April 1973 cut-off for Ninth Schedule laws was fixed in Waman Rao (1981); I.R. Coelho (2007) confirmed it.
• The Constitution contains no list of basic features; the Supreme Court identifies them in its judgments.
• A PIL can be filed in a High Court under Article 226, not only in the Supreme Court under Article 32.
• The Vishaka guidelines (1997) were followed by an Act of Parliament in 2013, not by a constitutional amendment.

Recap

• Judicial review: courts test laws, executive action and amendments against the Constitution; a law is void to the extent of the conflict (Article 13).
• Footing: Articles 13, 32, 226, 131–136 and 246; a law can fail by violating a right or by lack of legislative competence.
• India's middle path: neither British parliamentary sovereignty nor full American due process; Maneka Gandhi (1978) made procedure fair, just and reasonable.
• Limits: legality, not wisdom, of policy; Article 122; Ninth Schedule protection, subject to the basic structure; judicial review itself is a basic feature (L. Chandra Kumar, 1997).
• Basic structure: Shankari Prasad 1951, Golaknath 1967, 24th Amendment 1971, Kesavananda 1973 (13 judges, 7:6).
• Applied in Indira Gandhi v. Raj Narain 1975, Minerva Mills 1980, Waman Rao 1981, Bommai 1994, Coelho 2007 and the NJAC case 2015.
• Judicial activism expands rights and fills gaps (Maneka Gandhi, Vishaka); restraint defers on policy; overreach is the criticism.
• PIL: relaxed locus standi, letters as petitions (Hussainara Khatoon 1979, S.P. Gupta 1981, M.C. Mehta cases); guidelines against misuse (Balwant Singh Chaufal, 2010).

Practice questions

Sources

• Constitution of India, Articles 13, 21, 31B, 32, 122, 131–136, 141, 142, 226, 246, 329A (as inserted in 1975) and 368; Seventh and Ninth Schedules — https://legislative.gov.in/constitution-of-india/
• Constitution (Twenty-fourth Amendment) Act, 1971; (Thirty-ninth Amendment) Act, 1975; (Forty-second Amendment) Act, 1976; (Ninety-ninth Amendment) Act, 2014; Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — https://www.indiacode.nic.in
• Supreme Court of India: Shankari Prasad v. Union of India (1951); I.C. Golaknath v. State of Punjab (1967); Kesavananda Bharati v. State of Kerala (1973); Indira Nehru Gandhi v. Raj Narain (1975); Maneka Gandhi v. Union of India (1978); Hussainara Khatoon v. Home Secretary, State of Bihar (1979); Minerva Mills v. Union of India (1980); Waman Rao v. Union of India (1981); S.P. Gupta v. Union of India (1981); M.C. Mehta v. Union of India (1986); S.R. Bommai v. Union of India (1994); L. Chandra Kumar v. Union of India (1997); Vishaka v. State of Rajasthan (1997); I.R. Coelho v. State of Tamil Nadu (2007); State of Uttaranchal v. Balwant Singh Chaufal (2010); Supreme Court Advocates-on-Record Association v. Union of India (2015) — https://digiscr.sci.gov.in