Judiciary, Judicial Review & Fundamental Rights — UPSC CSE Mains GS2

Weightage: the highest-leverage subject in GS2, because its landmark judgments are citable across every other subject in the paper — federalism, elections, welfare, transparency and rights questions all draw on the same case law.

1. Judicial review: what it rests on

Judicial review is the power of courts to examine the constitutional validity of legislative enactments and executive action, and to declare them void where they are inconsistent with the Constitution. Unlike in the United States, where the power was established judicially, in India it rests on explicit constitutional text: Article 13 declares void any law inconsistent with Fundamental Rights, Article 32 gives the Supreme Court the power to enforce those rights, and Article 226 gives the High Courts a wider writ jurisdiction extending to legal rights beyond Part III. Articles 131–136 establish the Supreme Court's other jurisdictions, including the discretionary appellate power under Article 136 (special leave to appeal), which is the route through which most matters actually reach the Court.

Judicial review itself has been held to be part of the basic structure, which is what makes it unamendable — this is the load-bearing point in most questions about the judiciary's constitutional position, since it means the power cannot be curtailed even by constitutional amendment.

The distinction between the two writ jurisdictions is worth stating precisely because questions turn on it. Article 32 is itself a Fundamental Right and permits direct approach to the Supreme Court, but only for the enforcement of Fundamental Rights. Article 226 is wider in subject matter — High Courts may issue writs for the enforcement of Fundamental Rights and for any other purpose, meaning ordinary legal rights — but it is not itself a Fundamental Right and can therefore be regulated differently.

2. Appointments: the collegium, the NJAC, and the unresolved problem

The appointment of judges to the higher judiciary is governed by Articles 124 and 217, whose text provides for presidential appointment "after consultation with" the Chief Justice of India and other judges. The operative system today, however, derives not from that text but from three judgments known as the Judges cases, which progressively converted "consultation" into "concurrence" and then into a collegium's primacy.

The resulting collegium system has a five-judge collegium (the Chief Justice of India and the four senior-most judges) recommending appointments to the Supreme Court, and a three-judge collegium recommending High Court appointments. The government may return a recommendation for reconsideration, but if the collegium reiterates it, the appointment is to be made — the government's remaining leverage being delay rather than refusal.

The National Judicial Appointments Commission, created by the 99th Constitutional Amendment (2014), sought to replace this with a six-member body comprising the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons selected by a committee. In 2015, a five-judge bench struck down both the amendment and the accompanying Act by a 4:1 majority, holding that the inclusion of the Law Minister and the two eminent persons — combined with a veto mechanism allowing any two members to block a recommendation — diluted judicial primacy in appointments and thereby violated judicial independence as part of the basic structure.

The honest assessment, and the one a strong answer reaches, is that the judgment restored a system whose own defects the Court itself acknowledged: the collegium's deliberations are not recorded or published, criteria for selection and elevation are not stated, there is no secretariat or independent evaluation process, and the resulting opacity has drawn sustained criticism including from within the judiciary. The result is a genuine constitutional impasse — the reform attempted was struck down as endangering independence, while the system retained lacks transparency, and no third alternative has been legislated since.

3. Public interest litigation: expansion and its critics

PIL emerged from a relaxation of the traditional rule of locus standi — the requirement that only a person whose own rights are affected may approach the court. From the late 1970s the Supreme Court permitted any public-spirited person to move the court on behalf of those unable to do so themselves, and treated letters and postcards as writ petitions in appropriate cases.

Its achievements are substantial and specific: it opened constitutional remedies to prisoners, bonded labourers, and others without practical access to courts; it produced the environmental jurisprudence that read the right to a clean environment into Article 21; and it generated binding guidelines in areas of legislative inaction, the Vishaka guidelines on workplace sexual harassment (1997) being the standard example, later codified into statute in 2013.

The criticisms are equally specific and should be engaged rather than dismissed. PIL has been used to enter domains of policy where courts lack the institutional expertise and the democratic mandate to make allocative choices; continuing-mandamus jurisdiction has drawn courts into ongoing administration of matters better suited to executive agencies; the relaxed standing rule has attracted frivolous and publicity-driven petitions consuming judicial time; and there is no consistent, articulated principle determining which policy questions are justiciable and which are not. The Court has itself responded with cost impositions on frivolous petitions and periodic cautions about restraint, which suggests the criticism is recognised internally rather than merely externally.

4. Article 21 and the expansion of Fundamental Rights

The most consequential line of Indian constitutional development runs through Article 21, and tracing it is the single most reusable piece of preparation in GS2.

• A.K. Gopalan (1950) read the Fundamental Rights as separate, self-contained compartments, and "procedure established by law" in Article 21 as requiring only that a valid law prescribe the procedure, whatever its content.
• Maneka Gandhi (1978) reversed this on both counts. It held that Articles 14, 19 and 21 are interconnected and must be read together, and that the procedure contemplated by Article 21 must be fair, just and reasonable — importing substantive scrutiny into what had been a formal requirement, and effectively achieving through interpretation what the framers had declined to write as a due process clause.
• Subsequent judgments read a widening set of rights into Article 21's guarantee of life and personal liberty: livelihood, health, education (later given express form as Article 21A), a clean environment, shelter, and legal aid, drawing substantially on Directive Principles to give content to the right.
• K.S. Puttaswamy (2017), a nine-judge bench, held privacy to be a fundamental right intrinsic to life and personal liberty under Article 21, and articulated the proportionality test for assessing restrictions on rights: a restriction must pursue a legitimate aim, be rationally connected to it, be necessary in the sense that no less restrictive alternative would achieve it, and be proportionate in its balance between the aim and the rights burden imposed.

The proportionality standard is worth learning precisely, because it is the analytical tool now applied across rights questions generally — from data protection and surveillance to restrictions on speech and assembly — and citing its four limbs is considerably stronger than asserting that a restriction is unreasonable.

5. Pendency: diagnosed properly

Pendency is the topic where answers most often substitute a number for an analysis. The scale is real — well over five crore cases pending across all levels, with the Supreme Court's pendency having risen past ninety thousand and High Court pendency in the region of sixty-three lakh — but the decisive fact is distributional: the overwhelming majority, upward of 88%, sits in the district and subordinate courts, which is where the problem principally lies and where most reform discussion does not focus.

The causes are separable, and a strong answer names several rather than attributing everything to judicial vacancies:

• Vacancies are genuine, with several thousand posts unfilled in the subordinate judiciary and substantial High Court vacancies against sanctioned strength — but filling every post would not by itself clear the backlog.
• Judge-to-population ratio remains low by comparative standards, and successive Law Commission recommendations to raise it have not been implemented.
• Government as the largest litigant: a very large share of cases involve the state as a party, many of them appeals pursued routinely rather than on merit, which is why a genuine national litigation policy would reduce inflow more directly than any capacity measure.
• Procedural causes: liberal adjournment practice, interlocutory appeals that suspend proceedings, and the absence of effective case-flow management.
• Under-used alternatives: mediation, Lok Adalats and arbitration divert a smaller share of disputes than their design contemplates.

Framing pendency as an inflow-and-throughput problem rather than a judge-shortage problem is what distinguishes a diagnostic answer, and it generates correspondingly different recommendations.

Worked example 5.1 (illustrating a full 15-mark GS2 answer). "The collegium system has been criticised for opacity, while the NJAC was struck down for endangering judicial independence. Examine the way forward for judicial appointments. (15 marks, ~250 words)"

Model answer. The impasse is genuine and both positions rest on real considerations, which is why neither straightforward restoration of the NJAC nor defence of the status quo is adequate.

The collegium system, derived from the Judges cases rather than from the text of Articles 124 and 217, vests primacy in a body of senior judges. Its defects are acknowledged even within the judiciary: deliberations are unrecorded and unpublished, selection and elevation criteria are unstated, there is no secretariat or structured evaluation, and the absence of stated reasons makes both supersession and elevation unexplainable to the public.

The NJAC, introduced by the 99th Amendment (2014), addressed representation but not transparency: it added the Law Minister and two eminent persons to a six-member body, with a veto permitting any two members to block a recommendation. The 2015 judgment struck it down 4:1, holding that this diluted judicial primacy and thereby breached judicial independence as part of the basic structure. Notably, the defect identified was the executive's blocking capacity, not the principle of external participation as such.

The way forward therefore lies in reforms that improve transparency without transferring selection power to the executive. Three are concretely available: publishing objective, pre-stated criteria for selection and elevation; recording and disclosing reasons for recommendations and supersessions, subject to privacy limits; and establishing a permanent secretariat with an independent evaluation and complaints mechanism.

Each addresses the collegium's actual defect — opacity — while leaving judicial primacy, which the 2015 judgment protected, undisturbed. A Memorandum of Procedure finalised on these lines would resolve more of the problem than either institutional alternative has managed.

Common traps UPSC sets here

• Treating judicial review as judge-made in India — it rests on express text (Articles 13, 32, 226) and is protected as basic structure.
• Confusing Articles 32 and 226 — 32 is itself a Fundamental Right but confined to Fundamental Rights; 226 is wider in scope but not a Fundamental Right.
• Defending or attacking PIL wholesale — the achievements (access, environmental jurisprudence, Vishaka) and the criticisms (policy encroachment, frivolous petitions, no justiciability principle) are both specific and both real.
• Citing Puttaswamy only for privacy — its proportionality test is the more widely reusable contribution across rights questions.
• Reducing pendency to a judge-vacancy problem — the district-court concentration and the government's share of litigation are the more diagnostic facts.

Memory aids

• "Article 13 voids it, 32 enforces it, 226 goes wider" — the judicial review provisions.
• "Consultation became concurrence became collegium" — the appointments evolution in six words.
• "Struck down for the executive veto, not for external participation" — the precise NJAC holding.
• "Gopalan compartments, Maneka connects them" — the Article 21 turning point.
• "Legitimate aim, rational connection, necessity, balance" — Puttaswamy's four proportionality limbs.
• "Eighty-eight per cent sits in the district courts" — the pendency fact that reframes the problem.

Exam protocol

• Name the specific article for every jurisdictional claim and the specific case for every doctrinal position.
• For appointments questions, state precisely what the 2015 judgment objected to (the executive's blocking capacity), since this determines which reforms remain available.
• For rights questions, apply Puttaswamy's four-limb proportionality test rather than asserting reasonableness.
• For pendency, lead with the district-court concentration and name at least three distinct causes with correspondingly distinct remedies.
• Engage PIL's criticisms at their strongest before defending its record — an answer that only celebrates it reads as uncritical.