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BPSC Mains GS-2 Masterclass · Indian Polity

Guardians of the ConstitutionJudicial Review, Basic Structure & Judicial Activism

How a written constitution becomes limited government, how courts test laws against it, why some features of the Constitution are beyond amendment, and when an active judiciary helps or oversteps.

Review PowerArticle 13Null & Void

Laws that violate Fundamental Rights are void.

Landmark1973Kesavananda Bharati

Basic structure doctrine first laid down.

UntouchableBasic FeatureJudicial Review

Cannot be removed even by a constitutional amendment.

Origin1947Term Coined

‘Judicial activism’ originated in the USA.

PIL EraMid-1970sActivism in India

Iyer, Bhagwati, Chinnappa Reddy and Desai.

Tests3 GroundsScope of Review

Rights, competence and constitutional conflict.

Document vs principle

Constitution vs Constitutionalism

The concepts of constitution and constitutionalism both refer to the legal framework of a country, but they are not the same thing. One is a document; the other is a way of governing.

The document

Constitution

The constitution is defined as the “supreme law of a country”. It lays down the basic structure of the political system under which the people are to be governed.

It establishes the main organs of the State — the legislature, the executive and the judiciary.
It defines their powers, demarcates their responsibilities, and regulates their relationships with each other and with the people.
It outlines the ground rules under which certain powers are transferred to different organs of the State and are to be exercised by them.

The principle

Constitutionalism

Constitutionalism is a system of governance in which the power of the government is limited by the rule of law, as opposed to arbitrary, authoritarian or totalitarian rule.

It recognises the need to limit the concentration of power in order to protect the rights of groups and individuals.
The government’s power can be limited by the constitution and the provisions and regulations in it — but also by other measures and norms.

How they differ

Document vs principle

The constitution is generally a written document. Constitutionalism is a principle and a system of governance that respects the rule of law and limits the power of the government.

Practice can beat the text — or fail it

There can be a constitutional form of governance that respects citizens’ rights and promotes democratic values even when the national constitution is outdated. At the same time, an inefficient democratic government may fail to rule in a constitutional way despite having a constitution.

One can exist without the other

A country may have a constitution but not constitutionalism. And there are instances where there is no written constitution but constitutionalism prevails.

Example: Britain has no single written constitution, yet its government is limited by the rule of law, conventions and courts — constitutionalism without a written text.

Where they meet

Both refer to the limits and features of a country’s system of governance. Constitutionalism would not exist without a constitution, and governing in a constitutional way requires limits and boundaries on the central authority.

Both influence the actions of the government as well as the population.

Besides providing a framework for the political and institutional structure, the constitution sets out the main rules that all citizens should respect.
Ruling in a constitutional manner means the government applies the rules in the constitution to limit and manage citizens’ actions — always respecting individual and collective rights.

Both protect and preserve individual and collective rights, preventing abuse of power.

Both have evolved and changed significantly over the last few centuries, and are closely linked with the progress and spread of democracy.

The power to test laws

Judicial Review: Meaning, Basis & Scope

Judicial review is the power of the judiciary to examine whether laws made by the legislature and orders issued by the executive — of both the Central and State governments — are constitutional.

A judge's gavel resting on an open law book under a magnifying glass, in a wood-panelled courtroom

Ultra vires → null & void

If a law or order is found to violate the Constitution (ultra vires — beyond its powers), the court can declare it illegal, unconstitutional and invalid (null and void). The Government then cannot enforce it.

Not written, but clearly given

The term ‘judicial review’ is nowhere mentioned in the Constitution. But India has a written Constitution, and several of its provisions explicitly give the power of judicial review to the Supreme Court and the High Courts.

Art 13

All laws that are inconsistent with, or in derogation of, the Fundamental Rights shall be null and void.

Art 32

Guarantees the right to move the Supreme Court to enforce Fundamental Rights, and empowers it to issue directions, orders or writs for that purpose.

Example: Dr. Ambedkar called Article 32 the “heart and soul” of the Constitution.

Art 131

Original jurisdiction of the Supreme Court in Centre–state and inter-state disputes.

Example: In 2020, Kerala filed a suit under Article 131 challenging the Citizenship (Amendment) Act.

Art 132

Appellate jurisdiction of the Supreme Court in constitutional cases.

Art 136

The Supreme Court can grant special leave to appeal from any court or tribunal, except a military tribunal or court martial.

Beyond the reach of amendment

The Constitution has made the Supreme Court the interpreter of the Constitution, and that role involves judicial review. The Supreme Court has also declared judicial review a basic feature — an element of the basic structure — of the Constitution, in the Kesavananda Bharati case and the I.R. Coelho case. So judicial review cannot be curtailed or excluded even by a constitutional amendment.

Example: In I.R. Coelho (2007), the Supreme Court held that even laws placed in the Ninth Schedule after 24 April 1973 can be reviewed if they damage the basic structure.

Three kinds of judicial review

Constitutional amendments

Judicial review of amendments made to the Constitution.

Example: In 2015 the Supreme Court struck down the 99th Amendment, which had created the NJAC to appoint judges.

Legislation

Judicial review of laws made by Parliament and the State Legislatures, and of subordinate (delegated) legislation.

Example: Section 66A of the IT Act was struck down in Shreya Singhal (2015).

III

Administrative action

Judicial review of administrative action by the Union, the States and authorities under the State.

Example: In S.R. Bommai (1994), the Supreme Court held that a proclamation of President’s Rule can be reviewed by courts.

Why it matters

1Supremacy of the Constitution
It upholds the principle that the Constitution is supreme.
2Federal equilibrium
It maintains the balance between the Centre and the states.
Example: Suppose the Central government makes a law that, according to some states, deals with a subject from the State List. The states can go to the Supreme Court, and if the court agrees with them, it will declare the law unconstitutional.
3Fundamental Rights
It protects the Fundamental Rights of citizens.

Scope: three grounds to strike down

The constitutional validity of a law or an executive order can be challenged in the Supreme Court or a High Court on three grounds:

1
It infringes Fundamental Rights
It violates the Fundamental Rights in Part III.
2
It is beyond competence
It is outside the competence of the authority that framed it.
Example: A state law on a Union List subject, such as defence or atomic energy.
3
It conflicts with the Constitution
It is repugnant to the provisions of the Constitution.

In sum

Together, the writ powers and the review power make the judiciary very powerful. The review power means the judiciary can interpret the Constitution and the laws passed by the legislature. Many people think this enables the judiciary to protect the Constitution effectively and to protect the rights of citizens.

Judicial dynamism

Judicial Activism: Meaning & Evaluation

Judicial activism is the proactive role played by the judiciary in protecting citizens’ rights and promoting justice in society. In other words, it is the assertive role the judiciary plays to push the other two organs — the legislature and the executive — to discharge their constitutional duties.

A court building with open doors where citizens from all walks of life climb the steps carrying petitions

Where it came from

1947
Term coined in the USA
The concept originated and developed in the USA, where the term was first coined in 1947.
Mid-1970s
Arrives in India
Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai laid its foundations in India.
PIL era
Bhagwati and the PIL
Former Chief Justice P.N. Bhagwati is considered a pioneer of judicial activism for introducing the concept of PILs.

Judicial activism is also called “judicial dynamism”. It is the opposite of “judicial restraint”, which means the self-control exercised by the judiciary.

A recent phenomenon?

Is judicial activism a recent phenomenon in Indian governance? Not quite. The idea came from the USA (term coined in 1947) and took root in India in the mid-1970s through Justices Krishna Iyer, Bhagwati, Chinnappa Reddy and Desai. What is recent is how often, and how widely, courts now step into policy areas — which is why the debate on its merits has sharpened.

Activism and PIL

Judicial activism is closely linked to Public Interest Litigation (PIL).
The judicial activism of the Supreme Court is the major reason for the rise of PIL — PIL is an outcome of judicial activism.
PIL is the most popular form (manifestation) of judicial activism.

Example: Hussainara Khatoon (1979), on thousands of undertrial prisoners in Bihar’s jails, is often cited as India’s first PIL.

Evaluating judicial activism

Why courts step in

Arguments in favour of judicial activism:

Responsible government nearly collapses when the legislature and executive fail to do their jobs. This erodes citizens’ confidence in the Constitution and democracy.
Citizens look to the judiciary to protect their rights and freedoms, which puts tremendous pressure on courts to step in to help suffering people.
Judicial enthusiasm: judges like to take part in the social reforms of changing times. This encourages PIL and liberalises the rule of ‘locus standi’ (who may approach the court).
Example: In S.P. Gupta (1981), the Supreme Court allowed any public-spirited person to file a case on behalf of those who cannot approach the court themselves.
Legislative vacuum: some areas have not been legislated upon, so courts engage in ‘judicial legislation’ to meet changing social needs.

The Constitution itself contains provisions that give the judiciary enough scope to legislate or play an active role.
Example: Article 142 lets the Supreme Court pass any order needed to do “complete justice” in a case.
A ‘hung’ legislature produces a weak, insecure government busy only with survival, unable to take any decision that might displease a caste, community or other group.
Those in power may fear honest, hard decisions and lose power, so they refer public issues to courts as legal questions — to buy time, or to pass the blame for tough decisions to the courts.
A parliamentary party government may turn authoritarian and go against democratic ideals — for example, during the Emergency.

The synthesis

A double-edged weapon

The edge that protects

Used well, it fills gaps left by a failing legislature or executive and protects rights — as in Vishaka, Maneka Gandhi and the Taj Mahal orders.

The edge that cuts

Overused, it crosses into the domain of elected organs, strains separation of powers and can hurt the economy — as critics say of the coal block and 2G cancellations.

“If you make anything rigid and permanent you stop a nation’s growth, the growth of a living, vital, organic people.”

— Jawaharlal Nehru

Curated for BPSC, UPSC & State PCS Civil Services Aspirants | Indian Polity Master Module

Explore More Beyond the Book Modules

Guardians of the ConstitutionJudicial Review, Basic Structure & Judicial Activism

Constitution vs Constitutionalism

Constitution

Constitutionalism

How they differ

Document vs principle

Practice can beat the text — or fail it

One can exist without the other

Where they meet

Judicial Review: Meaning, Basis & Scope

Three kinds of judicial review

Constitutional amendments

Legislation

Administrative action

Why it matters

Scope: three grounds to strike down

The Doctrine of Basic Structure

How the doctrine developed

Issues with the Basic Structure Doctrine

What is ‘basic’ has never been clearly defined

Judicial Activism: Meaning & Evaluation

Where it came from

Evaluating judicial activism

A double-edged weapon

BPSC Mains Previous Year Questions

What is the difference between Constitution and Constitutionalism? Critically discuss the doctrine of ‘basic structure’ as enunciated by the Supreme Court of India.

What is judicial review? Critically examine the doctrine of basic structure as enunciated by the Supreme Court of India.

“Judicial activism is a recent phenomenon in the Indian governance.” Comment and bring out the main arguments in favour of and against judicial activism.

Comment on ‘Judicial Activism — Meaning and Evaluation’.

Comment upon “Judicial Action is a double edged weapon in a parliamentary democracy”.