JUDICIAL REVIEW

Judicial review is a process where the judiciary examines actions taken by the executive or legislative
branches. It also includes the judiciary reviewing its previous decisions. Both the Supreme Court and
High Courts have the authority to conduct judicial reviews.articles involved in judiciary

Articles Involved
1. Article 372: Sets rules for reviewing old laws.
2. Article 13: Declares laws against Fundamental Rights as invalid.
3. Articles 32 and 226: Give the judiciary the role of protecting Fundamental Rights.
4. Article 137: Lets the Supreme Court review its past decisions.

Judicial review of the ninth schedule:

1. Article 31B & Ninth Schedule (1951): Added to protect certain laws from being challenged for violating
Fundamental Rights. Initially, 13 laws included; now 282.

2. Supreme Court Rulings:

 Kesavananda Bharati Case (1973): Laws in the Ninth Schedule can be challenged if they violate the "basic
structure" of the Constitution.
 Waman Rao Case (1980): Laws added after April 24, 1973, are valid only if they don't harm the basic
structure.
 I.R. Coelho Case (2007): No blanket immunity for Ninth Schedule laws. Judicial review applies if they
violate Articles 14, 19, or 21.

3. Key Points:
 Laws violating Fundamental Rights or basic structure will be invalidated.
 Only laws added after 1973 can be challenged.
 Judicial review is a core feature of the Constitution.

4. Conclusion: Ninth Schedule laws are open to review if they affect the basic structure.

Importance of judicial review in India:

1. Constitutional Importance

 Federal Balance: Prevents central government overreach. Example: SR Bommai case limited
President's Rule.
 Upholds Constitution: Ensures the constitution is supreme. Example: Shreya Singhal case struck
down unconstitutional IT Act provisions.
 Prevents Autocracy: Checks government power.
 Separation of Powers: Protects against overreach. Example: NJAC verdict was struck down.
 Protects Basic Structure: Prevents harmful amendments. Example: Kesavananda Bharati case
upheld the constitution's basic structure.
 Checks and Balances: Allows judicial review of executive actions. Example: Cooper vs. Union of
India subjected presidential actions to review.
2. Individual/Society Importance

Fundamental Rights: Protects citizens from government abuses. Example: Golaknath case barred
Parliament from limiting Fundamental Rights.
Social Justice: Prevents rights violations. Example: 2020 SC reinstated anticipatory bail ban under SC/ST
Act.
Personal Laws: Guards against unfair personal law practices. Example: Shayra Bano verdict declared
triple talaq unconstitutional.

Limitations to Judicial Review in India

1. Hinders Government: Disrupts law implementation by Parliament.
2. Judicial Activism: Courts overstepping their role can breach boundaries.
3. Institutional Bias: May target elected governments due to conflicts.
4. Personal Interest: Judges might have conflicts of interest.
5. Lack of Expertise: Courts should avoid political interference.
6. Erodes Trust: Frequent interventions can reduce public confidence.
7. Oversteps Limits: Can violate constitutional power limits.

Notable Cases in India

1. Maneka Gandhi (1978): Linked Indian and US legal processes, emphasizing natural justice.
2. Shreya Singhal (2015): Struck down IT Act provisions for arresting online posts.
3. Kesavananda Bharati (1973): Ruled Parliament cannot alter the constitution's basic structure.
4. Indira Gandhi vs. Raj Narain (1975): Invalidated the 39th Amendment restricting election
questions for leaders.
5. SR Bommai (1994): Set limits on invoking President’s Rule to curb central power.
6. IR Coelho (2008): Allowed judicial review of laws added to the 9th Schedule after April 24, 1973.
7. Shayra Bano (2017): Declared triple talaq unconstitutional.
8. Krishna Kumar Singh: Ruled that re-promulgating ordinances undermines democracy.

Way Forward for Judicial Review

1. Use Sparingly: Reserve for key rights issues.
2. Limit Power: Create rules to prevent misuse.
3. Cooperate: Work with the judiciary before making laws.
4. Respect Boundaries: The executive should avoid interfering with judicial matters.

PUBLIC INTEREST LITIGATION (PIL)

Public Interest Litigation (PIL) is a legal action taken in court to protect the interests of the public or a
specific community, especially when their legal rights are affected. The PIL movement began with Justice
P.N. Bhagwati in the case of S.P. Gupta vs. Union of India.

Importance of Public Interest Litigation (PIL)

1. Constitutional Importance
 Rights Advocacy: Enables individuals to claim their rights and seek justice.
 Democratises Justice: Allows anyone to file petitions for those who can’t. Example: Parmanand
Katara raised issues about hospitals denying treatment to accident victims.
 Judicial Review: Challenges government decisions. Example: Shreya Singhal case struck down
arrests for online posts.
  Government Accountability: Ensures the government meets its legal obligations.
 Rule of Law: Maintains checks on government actions.
 Focused Attention: Addresses major public issues. Example: Petition to rescue Indian migrants
during COVID.
 Investigative Litigation: Uses reports to support justice claims.
 Informal Justice: Tackles social issues often missed by formal systems.

2. Political Importance
 Accountability: Challenges government actions and policies.
 Citizen Awareness: Increases public knowledge of rights.

3. Social Importance
 Voice for the Vulnerable: Represents marginalized groups. Example: NALSA verdict secured
rights for transgenders.
 Substantive Justice: Aims to ensure fairness and welfare. Example: Vishaka Guidelines protect
women from harassment.
 Human Rights: Supports those whose rights are denied. Example: Court ordered release of
bonded laborers in Bandhun Mukti Morcha case.
 Monitoring: Oversees institutions like orphanages and old age homes. Example: Hussainara
Khatoon case led to the release of undertrials.
 Participatory Democracy: Empowers citizens to engage in justice processes.
 Collective Rights: Protects rights of groups in similar situations. Example: Samatha case banned
leasing tribal land by private entities.
 Cost-Effective: Cheaper than traditional legal methods with low court fees.

Issues with PIL:

1. False petitions waste court time.
2. Delays in PIL cases diminish their value.
3. Courts sometimes exceed their authority.
4. Inconsistent approaches in handling cases.
5. PIL is misused for personal grievances.
6. PILs delay justice for long-pending cases.
7. More PILs increase the judiciary's workload.
8. Removing locus standi allows private motives.
9. Political parties file frivolous petitions for publicity.
10. One decision can harm another group's rights.

Succesful pil cases:

1. Vishaka Guidelines (1997): Established rules against workplace sexual harassment.
2. Hussainara Khatloon Case: Ordered the release of 40,000 undertrials who served their maximum
sentence.
3. Parmanand Katara Case: Required hospitals to treat emergency accident victims without police
concerns.
4. Sheela Barse Case: Mandated separate police facilities for women to prevent abuse.
5. MC Mehta Case (1988): Criticized authorities for polluting the Ganges with sewage.
6. Sumit Batra Case: Protected undertrials from solitary confinement.
7. 2G Scam: Led to the cancellation of 122 wrongfully issued 2G licenses.
 8. Indira Sawhney Case: Limited reservation systems to ten years for adequate representation.
9. NALSA Case (2014): Recognized fundamental rights for transgender individuals.
10. Shreya Singhal Case: Struck down unconstitutional arrests for online content under Section 66A
of the IT Act.

Way Forward
1. Consider Impact: Courts should think about how their decisions affect those not in court.
2. Set Guidelines: Supreme Court should act only for serious rights violations.
3. Punish Frivolous Petitions: Impose penalties on those who file trivial cases.
4. Prioritize Collective Rights: Focus on cases that benefit many people.
5. Compensate Affected Parties: Frivolous claimants should pay the other side.
6. Limit Personal Gain: Restrict petitions filed for personal interests.
7. Soli Sorabjee’s Ideas:
1. Dismiss False Cases: Reject petitions without merit.
2. Avoid Conflicts: Dismiss cases with financial interests.
3. Allow Unrelated Petitioners: Let those not involved file petitions.

JUDICAL ACTIVISM
In a vast country like India, the government sometimes struggles to provide effective justice and enforce
laws. As a result, the judiciary may need to intervene to protect public interests. This intervention is
known as judicial activism. However, if the judiciary exceeds its authority and goes beyond its role, it is
referred to as judicial overreach.

Advantages of Judicial Activism

1. Protects Rights: Ensures government does not violate citizens' rights.
Example: Struck down unconstitutional arrest provisions in the IT Act.

2. Quick Solutions: Provides fast resolutions for issues often delayed in Parliament.
Example: Banned old diesel and petrol vehicles in Delhi.

3. Expertise in Law: Brings constitutional knowledge to legal issues.

4. Checks Power: Monitors government actions to prevent authoritarianism.

Example: Restored bans on anticipatory bail in SC/ST cases.

5. Supports Governance: Steps in when the government is weak, guiding policy decisions.

6. Prevents Abuse: Eliminates misuse of power by the executive.

Example: Addressed power misuse in the Krishna Kumar case.

Issues with Judicial Activism

1. Exceeding Power: Judiciary may overstep its role and interfere with legislation.
2. Undermining Constitution: Activism can weaken the Constitution's principles.
3. Unelected Authority: Judges impose decisions without being elected, challenging democracy.
4. Personal Bias: Judges might act on personal agendas instead of legal principles.
5. Lack of Expertise: Judges may lack the knowledge needed for complex issues.
Notable examples:
1. Polluting Vehicles: Court banned diesel vehicles over 10 years and petrol vehicles over 15 years
in Delhi.
2. Vishaka Guidelines (1997): Set rules to prevent sexual harassment at workplaces.
3. Shreya Singhal Case (2015): Overturned IT Act provisions allowing arrests for online posts.
4. 2G Scam: Court canceled 122 illegal 2G licenses.
5. Kesavananda Bharati Case: Parliament can amend the Constitution but can't change its core
principles.

Concerns Over Judicial Overreach

1. Separation of Powers: Judicial actions may upset the balance of government powers.
2. Legislative Challenges: Courts often ignore difficulties faced by lawmakers.
3. Accountability Issues: Judges lack direct accountability to the public.
4. Personal Agendas: Judges may act on individual biases.
5. Legal Uncertainty: Frequent changes can confuse legal standards.
6. Hasty Decisions: Courts might make quick rulings without proper analysis.

Way Ahead
1. Improve Efficiency: Streamline court processes for faster decisions.
2. Set Clear Standards: Establish guidelines for consistent laws.
3. Increase Accountability: Ensure transparency in judicial decisions.
4. Involve the Public: Engage citizens in the judicial process.
5. Ongoing Training: Educate judges on legal and social issues.
6. Foster Cooperation: Promote collaboration between government branches.

CHALLENGES FACED BY THE JUDICIARY

1. Human Resources

Vacancies: 411 out of 1,080 high court judge positions are unfilled; 4 vacancies in the Supreme Court (as
of April 2021).

Representation: Underrepresentation of women and minorities; only 7 women have been Supreme
Court judges.

Appointment Issues:
 Lack of transparency in appointment processes.
 No judicial review of appointments.
 Instances of bias, such as favoritism in appointments.

2. Infrastructure
 Poor Digitization: Insufficient IT investment and cybersecurity risks.
 Basic Facilities: Many courts lack essential amenities.

3. Transparency and Accountability

 RTI Issues: Unnecessary conditions for information requests.
  Judicial Independence: Compromised by post-retirement jobs.
 Misuse of Time: Inefficient court proceedings.
 Misconduct Investigations: No independent body to investigate judges.

4. Justice Delivery
 Judicial Propriety: Inappropriate rulings, such as forcing victims to marry offenders.
 Bias: Lack of checks allows judges to act on personal biases.
 Overreach: Courts intervening in executive and legislative matters.
 Outsourcing: Delegating constitutional issues to executive bodies.

5. Other Issues
 Excessive Powers: Laws grant investigative agencies too much authority.
 Lack of Timelines: Few laws set deadlines for investigations.
 Supreme Court Challenges

6. Backlog: High number of pending cases.

7. Judicial Role:Debate on activism versus restraint.

8. Uncle Judge Syndrome : Judges' informal behavior affecting decisions.

9. Judicial-Executive Conflict: Tensions between judiciary and executive branches.

Way Forward for Courts

1. Impact Assessment: Create a strategy to evaluate court initiatives based on case type and status.
2. Reducing Pendency:
 Reassess Time Limits: Adjust rules for socio-economic offenses with limited evidence.
 Promote Mediation: Encourage settlement options.
 Improve Justice Delivery: Enhance processes with timely appointments and better facilities.
 Decongest Courts: Redirect cases to commercial courts and magistrates.
3. National Litigation Policy: Set guidelines for consistent government decisions.
4. Adopt Technology: Increase digital tools in court operations.
5. Gender Diversity Task Force: Establish a task force with at least 50% women to enhance gender
diversity.
6. NITI Aayog Suggestions:
 Judicial Services: Maintain high standards in the judiciary.
 Skills and Ethics Training: Focus on improving skills and ethics.
 Performance Index: Develop a justice performance index for judges.

INDEPENDENCE OF JUDICIARY
Independence of the Supreme Court:

1. Appointment Process: Judges are appointed by the President in consultation with the judiciary to prevent
political influence.

2. Security of Tenure: Judges can only be removed by a set procedure in the Constitution, ensuring job security and
independence.
3. Fixed Service Conditions: Salaries and benefits are determined by Parliament and cannot be reduced during their
term, except in financial emergencies.

4. Expenses Charged on Consolidated Fund: The Supreme Court’s expenses, including salaries, are charged on
India’s Consolidated Fund, making them non-votable by Parliament.

5. Conduct of Judges: The conduct of judges cannot be discussed in Parliament or state legislatures, except during
impeachment proceedings.

6. Ban on Practice after Retirement: Retired judges are prohibited from practicing law to avoid future bias.

7. Contempt Powers: The Supreme Court can punish for contempt to uphold its authority and dignity.

8. Freedom to Appoint Staff: The Chief Justice of India can appoint court staff without interference from the
executive.

9. Jurisdiction Protection: Parliament cannot reduce the Supreme Court’s jurisdiction, but it can extend it.