Judicial review, PIL and the collegium

The Indian judiciary is among the most powerful in the world. It can strike down constitutional amendments, it hears cases brought by citizens who were not personally wronged, and it largely selects its own members. Each of these features has a history, a justification and a set of critics. GS II returns to them regularly, often through the lens of "judicial activism versus judicial overreach".

Judicial review

What it is: the power of courts to examine whether laws and executive actions conform to the Constitution, and to strike them down if they do not.

Where it comes from: the idea is usually traced to the American case Marbury v. Madison (1803). The Indian Constitution does not use the phrase, but it builds the power in:

• Article 13 — laws inconsistent with Fundamental Rights are void;
• Articles 32 and 226 — the Supreme Court and High Courts can enforce rights through writs;
• Articles 131–136 — the Supreme Court's original, appellate and special leave jurisdictions;
• Article 142 — the Supreme Court can pass orders necessary for "complete justice".

Scope: judicial review covers ordinary laws, executive action, and — after Kesavananda Bharati (1973) — even constitutional amendments, tested against the basic structure. In L. Chandra Kumar (1997), the Supreme Court held that the judicial review powers of the High Courts and the Supreme Court are themselves part of the basic structure.

How it differs from the American model

India's Constitution uses "procedure established by law" in Article 21, rather than the American "due process of law". Originally this suggested narrower review. After Maneka Gandhi (1978), which required procedure to be just, fair and reasonable, Indian review came much closer to substantive due process.

Public interest litigation (PIL)

What changed: traditionally, only a person whose own rights were violated could approach a court (locus standi). From the late 1970s, the Supreme Court relaxed this rule so that any public-spirited person could approach it on behalf of people unable to do so themselves — prisoners, bonded labourers, children, the poor.

The pioneers: Justices P.N. Bhagwati and V.R. Krishna Iyer are most associated with the development of PIL.

Key early cases:

Innovations: the Court accepted letters as petitions ("epistolary jurisdiction"), appointed commissioners to investigate facts, and developed "continuing mandamus" — keeping a case open to monitor compliance over years.

The problem of misuse: over time, PILs were also filed for publicity, political or private motives. In State of Uttaranchal v. Balwant Singh Chaufal (2010), the Supreme Court laid down guidelines to check frivolous PILs, including verifying the petitioner's credentials and bona fides.

The collegium system

The text: Article 124 says Supreme Court judges are appointed by the President after "consultation" with such judges as the President deems necessary, and the Chief Justice of India must always be consulted for judges other than the CJI. Article 217 has a similar provision for High Courts. The meaning of "consultation" became the battleground.

The Three Judges cases

The NJAC and after

The 99th Amendment (2014) and the NJAC Act replaced the collegium with a National Judicial Appointments Commission: the CJI, two senior-most judges, the Union Law Minister and two eminent persons. In 2015 the Supreme Court struck it down (often called the Fourth Judges case), holding that the arrangement compromised the independence of the judiciary, which is part of the basic structure. The collegium was restored, and the Court acknowledged the need to improve its transparency.

The debate

Criticisms of the collegium: lack of transparency; no written criteria; charges of nepotism; delays in appointments; the executive's continuing ability to stall by not processing recommendations; inadequate diversity.

Defences: it insulates appointments from political pressure; the alternatives proposed so far risked executive dominance; reforms can be made within the system — published reasons, clear criteria, a secretariat, time limits.

Activism or overreach?

This is the frame for many Mains questions.

Judicial activism — the judiciary stepping in to protect rights and the rule of law where other branches have failed: prison reform, environmental protection, guidelines on sexual harassment at the workplace (Vishaka, 1997) before legislation existed.

Judicial overreach — the judiciary taking decisions that belong to the legislature or executive: detailed policy prescriptions, administrative management through continuing orders, or broad use of Article 142.

The line between them is not fixed. A balanced answer acknowledges that activism has often filled genuine gaps, while the separation of powers requires courts to exercise restraint where the matter is one of policy rather than rights.

Practice questions

1. Prelims-type: Which case established the collegium system? Which amendment created the NJAC, and when was it struck down?
2. Mains-type (150 words): How did public interest litigation change access to justice in India? What safeguards exist against its misuse?
3. Mains-type (250 words): "The collegium system has protected judicial independence but at the cost of accountability." Critically examine.