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Judicial review, judicial activism and judicial accountability

Indian Constitutional Law - New Challenges · Unit V · Topic 17 of 21 · 5 min read

The sources of judicial review, the rise of public interest litigation and continuing mandamus, the critique of overreach, and who judges the judges: appointments, removal, transparency and contempt.

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On this page
  1. 1. Judicial review: the constitutional base
  2. 2. What activism means
  3. 3. The tools of the activist court
  4. 4. The critique
  5. 5. Judicial accountability
  6. 6. Comparative notes
  7. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. “Judicial activism” is a regular short note. A good one defines the term neutrally, shows the tools the Indian court built (PIL, relaxed standing, epistolary jurisdiction, guidelines, continuing mandamus), gives both the defence and the critique, and ends with the accountability question that activism raises.

1. Judicial review: the constitutional base

Unlike the United States, where review was inferred in Marbury v. Madison (1803), the Indian Constitution makes it express: Article 13 voids laws inconsistent with Part III, Article 32 gives a right to move the Supreme Court for enforcement, Article 226 empowers the High Courts, and Article 142 lets the Supreme Court pass any order necessary for complete justice. Review extends to constitutional amendments through the basic structure doctrine (previous note) and to executive action through the grounds of illegality, irrationality, procedural impropriety and proportionality.

2. What “activism” means

The word is used in at least three senses, and an answer should separate them:

  1. willingness to strike down legislative or executive action (the opposite of Thayerian deference);
  2. expansive interpretation creating rights not stated in the text (Article 21 after Maneka Gandhi);
  3. assumption of functions usually performed by the political branches: framing guidelines, supervising administration, appointing committees.

Upendra Baxi described Indian PIL as social action litigation, distinguishing it from American public interest law: it arose from the court’s own initiative after the Emergency, in part to recover legitimacy lost in ADM Jabalpur, and was aimed at the poor and the unrepresented. His essay “Taking Suffering Seriously” remains the classic account.

3. The tools of the activist court

4. The critique

Taking a position. The best answers do not simply list praise and blame. One defensible thesis is Ely’s: activism is most legitimate when it repairs failures of representation (bonded labourers, prisoners, voters denied information) and least legitimate when it substitutes the court’s policy preference in areas where the political process is working. That gives a principled line between Bandhua Mukti Morcha and, say, a judicial order on river-linking.

5. Judicial accountability

The more power courts exercise, the louder the question of who checks them.

6. Comparative notes

In the United Kingdom, under parliamentary sovereignty, courts cannot strike down primary legislation; the Human Rights Act, 1998 allows only a declaration of incompatibility (section 4). The Constitutional Reform Act, 2005 created the UK Supreme Court and an independent Judicial Appointments Commission, which is the model the NJAC debate usually cites. In the United States, federal judges are nominated by the President and confirmed by the Senate; the politicisation of confirmations is the cautionary tale cited by defenders of the collegium.

How this is examined

“Judicial activism” was set as a short note in April 2024. Longer forms: “Judicial activism is judicial legislation. Comment”, or “Discuss PIL as an instrument of social justice”. Define, give the tools with one case each, then the critique, the accountability point and a stated conclusion.

Now try the real questions: Indian Constitutional Law - New Challenges past question papers.