Judicial activism, PIL and judicial review: how courts became lawmakers

Few phrases in Indian public life are used as loosely as judicial activism. It is praised when the court frees undertrial prisoners and condemned when it tells cinema halls to play the national anthem. Between those extremes lies one of the most consequential ideas in the Constitution: the power of courts to review the actions of the other two organs, the invention of public interest litigation that carried that power to the poorest litigant, and the permanent tension with the separation of powers. This article traces judicial review, judicial activism and PIL as one connected story.

Judicial review: the doctrine and its constitutional anchors

Judicial review means the power of courts to examine the actions of the legislature and the executive and invalidate those that are unconstitutional. India does not have a single article titled judicial review. The power is woven through several: Article 13 declares laws inconsistent with fundamental rights void; Articles 32 and 226 give the writ jurisdiction; Article 136 gives discretionary appeal; Articles 141 and 142 make the Court's declarations binding and complete; and Article 144 obliges all authorities to act in aid of the Supreme Court.

The scope of review expanded in three landmark steps. In Kesavananda Bharati (1973) the Court invented the basic structure doctrine, limiting Parliament's amending power. In Minerva Mills (1980) it held that judicial review itself is part of the basic structure, striking down the 42nd Amendment clauses that had tried to oust it. In I.R. Coelho v. State of Tamil Nadu (2007) a nine-judge bench held that laws placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, are open to judicial review if they violate the basic structure. Review, in short, is not a gift of Parliament that Parliament can take back.

From restraint to activism: how the Court changed its mind

The early Court was restrained. In A.K. Gopalan v. State of Madras (1950) it read Article 21 narrowly, holding that procedure established by law meant any procedure Parliament enacted. The Emergency of 1975 to 1977, and the Court's surrender in ADM Jabalpur (1976), broke that posture. After the Emergency the Court deliberately rebuilt its legitimacy by becoming the protector of the vulnerable, and activism became its working method.

Justice P.N. Bhagwati called activism not an aberration but a necessary tool for justice, and Justice V.R. Krishna Iyer supplied its moral vocabulary. The doctrinal vehicle was Maneka Gandhi v. Union of India (1978), which overruled Gopalan: procedure established by law must now be fair, just and reasonable, and Article 21 was opened to a long expansion, from the right to speedy trial to the right to privacy in K.S. Puttaswamy (2017). Activism, then, is not a separate power. It is judicial review exercised with an expansive reading of rights and a willingness to enter governance vacuums.

PIL: the Indian invention

Public interest litigation is India's distinctive contribution to comparative constitutional law. The orthodox rule of locus standi required the petitioner to be personally aggrieved. PIL relaxed it: where a person or class is unable to approach the court by reason of poverty, disability or social disadvantage, any public-spirited citizen or organisation may move the court on their behalf.

The landmarks form a clear sequence. Hussainara Khatoon v. State of Bihar (1979), concerning undertrial prisoners languishing in Bihar's jails, is treated as the first PIL; it established the right to speedy trial and free legal aid under Article 39A. Sunil Batra v. Delhi Administration (1980) took the Court inside prison walls. S.P. Gupta v. Union of India (1981), the Judges' transfer case, formally relaxed locus standi for public interest matters. Bandhua Mukti Morcha v. Union of India (1984) addressed bonded labour, and the M.C. Mehta series from 1986 onwards carried PIL into environmental protection, producing doctrines like absolute liability for hazardous industries. Olga Tellis v. Bombay Municipal Corporation (1985) read the right to livelihood into Article 21 for pavement dwellers.

The Court also fenced the new jurisdiction against misuse. Its guidelines bar PILs in matters like landlord-tenant disputes, pension and gratuity claims, pleas for early hearing of cases already pending in High Courts or subordinate courts, and complaints against government departments and local bodies, with limited exceptions. The fence matters: it keeps PIL for those who cannot reach the court themselves, not for every grievance dressed up in the public interest.

Four forces explain why PIL grew the way it did. First, the liberalisation of locus standi: courts began admitting petitions from strangers acting in the public interest, beginning with Hussainara Khatoon v. State of Bihar (1979) on undertrial prisoners' rights. Second, judicial activism itself: PILs began compelling government action on public issues, as when the Court laid down sexual-harassment guidelines in Vishaka v. State of Rajasthan (1997). Third, the protection of marginalised groups where state action fell short, from bonded labourers in Bandhua Mukti Morcha v. Union of India (1984) to the right to a healthy environment in M.C. Mehta v. Union of India (1986). Fourth, the legal-aid movement, institutionalised by the Legal Services Authorities Act, 1987, which carried PIL to citizens who could never have approached the Court alone.

The toolkit of an activist court

Activism needed procedures, and the Court invented them. Epistolary jurisdiction allowed a letter, even a postcard, to be treated as a writ petition, collapsing the distance between a bonded labourer and the Supreme Court. Suo motu cognizance let the Court start proceedings on its own, on the basis of a newspaper report or a letter. Continuing mandamus, used in Vineet Narain v. Union of India (1997) to supervise the CBI's investigation of the Hawala scandal, let the Court monitor an investigation over months instead of deciding once and departing.

The boldest instrument was gap-filling legislation by guideline. In Vishaka v. State of Rajasthan (1997), faced with no law on sexual harassment at the workplace, the Court issued binding guidelines under Articles 141 and 142 until Parliament legislated, which it did sixteen years later with the 2013 Act. The Court also read new rights into Article 21, commissioned expert committees and special investigation teams, and in Common Cause v. Union of India (2018) legalised passive euthanasia with advance medical directives. Each instrument extended the Court from dispute resolution into governance.

The liability doctrines this section traces, especially absolute liability from the M.C. Mehta cases, now face their biggest legislative test in the nuclear sector. The SHANTI Act, 2025, which opened nuclear power to private operators, replaced the Civil Liability for Nuclear Damage Act, 2010, removed supplier liability, and set tiered operator liability of 100 crore to 3,000 crore rupees depending on plant capacity, with disputes to be heard by a specialised nuclear tribunal. The full story of the Act, from its passage in December 2025 to its liability architecture, is covered in the article on 2025's landmark bills (see link below).

The critics' case: overreach and its discontents

Judicial overreach is the charge that the court has exceeded its jurisdiction and entered the domain of the legislature or executive. The separation of powers objection is the oldest: India follows checks and balances, not a rigid separation, but even so, judges are unelected and unaccountable in the democratic sense, and policy made from the bench cannot be voted out. When the Court in Shyam Narayan Chouksey v. Union of India (2016) made the national anthem mandatory in cinema halls, critics asked what constitutional provision authorised cinema programming.

The practical objections are as sharp. PIL was designed for the voiceless, but the docket is crowded with publicity-driven petitions by the well-connected, while undertrial numbers stay high. Continuing mandamus keeps cases alive for decades without resolution. And activism is selective by temperament: it depends on which judges sit on the bench, which makes it unpredictable as a governance method. Defenders answer that the Court steps in only where the executive and legislature have failed, filling a policy vacuum rather than seizing power. The debate is genuinely unresolved, which is exactly why UPSC keeps asking about it.

D.K. Basu (1997): when guidelines became law

D.K. Basu v. State of West Bengal (1997) is the ruling that laid down eleven binding requirements for every arrest and detention: the arrest memo must be attested by a witness, the arrestee must be told the grounds of arrest, a friend or relative must be informed, medical examination must be recorded, and every detail must enter the police diary. The Court issued them under Articles 32 and 142 to fill a legislative vacuum on custodial safeguards.

With Vishaka (1997) on workplace harassment, D.K. Basu forms the classic pair of guideline activism: the Court legislating by direction where Parliament had not acted. For Mains, the pair is the strongest illustration of the gap-filling role of the Court, and for Prelims the eleven-point checklist is a direct question bank.

Why the Court became the world's most powerful judiciary

Several features combine to give the Indian Supreme Court a reach no other apex court enjoys. It interprets rights expansively through PILs, intervenes directly in governance from prison reforms to environmental regulation, and exercises a wide judicial review over constitutional amendments, legislation and executive action, as in Kesavananda Bharati (1973). India runs an integrated judiciary in a federal setup, unlike the United States where states have their own supreme courts. After the Second Judges case of 1993 the collegium made it probably the only system in the world where judges appoint themselves. And the twin engines of Article 136 (special leave) and Article 142 (complete justice) give it procedural powers few apex courts possess.

Review, activism, overreach: the spectrum at a glance

Three labels describe three postures of the same institution. The table keeps them distinct, because examiners love blurring them.

Prelims hooks

• Judicial review anchors: Articles 13, 32, 136, 141, 142, 226. Minerva Mills (1980): review is part of the basic structure. I.R. Coelho (2007): post-24 April 1973 Ninth Schedule laws are reviewable.
• A.K. Gopalan (1950): narrow reading of Article 21; Maneka Gandhi (1978): procedure must be fair, just and reasonable.
• Hussainara Khatoon (1979): first PIL, undertrials, speedy trial and free legal aid. S.P. Gupta (1981): relaxed locus standi.
• Bandhua Mukti Morcha (1984): bonded labour. M.C. Mehta (1986 onwards): environment, absolute liability. Olga Tellis (1985): right to livelihood.
• Epistolary jurisdiction: letters treated as writ petitions. Continuing mandamus: Vineet Narain (1997), Hawala case.
• Vishaka (1997): guidelines on workplace sexual harassment under Articles 141 and 142. Common Cause (2018): passive euthanasia and advance directives.
• Judicial restraint is the counter-doctrine: courts defer to the legislature and executive on policy, intervening only on constitutional violation.
• PIL guidelines: no PIL for landlord-tenant disputes, pension and gratuity claims, early hearing of pending cases, or complaints against government departments and local bodies.
• SHANTI Act, 2025: replaced the Civil Liability for Nuclear Damage Act, 2010; opened nuclear power to private operators; removed supplier liability; tiered operator liability of 100 crore to 3,000 crore rupees; specialised nuclear tribunal.

Mains angle

A GS-2 answer on this theme must show both the doctrine and the dilemma. Open with judicial review as the constitutional foundation, trace its hardening through Kesavananda, Minerva Mills and Coelho, then present activism as review plus an expansive Article 21 plus procedural invention. PIL is the delivery mechanism: locus standi relaxed, epistolary jurisdiction, continuing mandamus.

The analytical core is the legitimacy question. Argue that activism is defensible as a response to governance failure, the Vishaka vacuum being the textbook case, but that it becomes overreach when it substitutes judicial preference for legislative choice without a rights anchor. Close with the institutional balance: an activist court protected liberty after the Emergency, yet a court that governs by mandamus risks the very separation of powers it claims to defend. The 2014 and 2024 mains questions both demand exactly this two-sided evaluation.

Key Terms

• Vishaka guidelines: The Supreme Court's 1997 guidelines on sexual harassment at the workplace, issued in Vishaka v. State of Rajasthan, which operated as law until legislation followed.
• Hussainara Khatoon v. State of Bihar (1979): The undertrial-prisoners case that opened the PIL era by admitting a petition on behalf of strangers to the dispute.
• Judicial overreach: The critical term for judicial action perceived as usurping executive or legislative functions, as distinct from legitimate review or activism.
• D.K. Basu v. State of West Bengal (1997) is: This is a landmark 1997 Supreme Court judgment laying down eleven binding guidelines for arrest and detention to prevent custodial torture and deaths. It requires a memo of arrest, informing a relative or friend, medical examination of the arrestee, and informing the person of the right to legal aid. For UPSC, it anchors answers on police reforms, Article 21 dignity rights, and the judiciary's role in protecting personal liberty. Every police station must now prepare an arrest memo attested by a witness, per this judgment.
• The Civil Liability for Nuclear Damage Act, 2010: The Civil Liability for Nuclear Damage Act, 2010 is India's law capping and channeling liability for nuclear accidents. It caps operator liability at Rs 1,500 crore and, uniquely among world laws, gives the operator a right of recourse against suppliers for defective equipment under Section 17. It matters because the supplier-liability clause shaped foreign reactor supply deals and India's nuclear insurance pool, and it is a recurring UPSC prelims and mains topic on energy policy and India-US nuclear cooperation. India ratified the Convention on Supplementary Compensation in 2016
• Hussainara Khatoon v. State of Bihar: Hussainara Khatoon v. State of Bihar (1979) is the Supreme Court case that read the right to speedy trial and free legal aid into Article 21. Filed as a public interest petition on undertrial prisoners languishing in Bihar jails, it held that procedure under Article 21 must be fair and reasonable and that an indigent accused is entitled to free legal services under Article 39A. UPSC significance: foundation of PIL jurisprudence and prison reform. The Court ordered release of undertrials jailed longer than their maximum possible sentence.
• Common Cause v. Union of India: Common Cause v. Union of India (2018) is the Supreme Court judgment that recognised the right to die with dignity under Article 21 and legalised passive euthanasia in India. It upheld advance medical directives, or living wills, allowing terminally ill patients to refuse life support, and laid down safeguards including medical board approvals. The Court later simplified the procedure in 2023. It matters for UPSC polity and ethics questions on the right to life, patient autonomy and end-of-life care. the Supreme Court's 2023 order simplifying living-will procedures
• Vishaka v. State of Rajasthan: The Vishaka v. State of Rajasthan (1997) judgment is the Supreme Court ruling that created India's first legal framework against sexual harassment of women at the workplace. Arising from a public interest petition after a gang rape in Rajasthan, it issued the Vishaka Guidelines, which required employers to prevent harassment and set up complaint committees. These guidelines functioned as law until the 2013 POSH Act, and the case remains a staple in UPSC polity and gender-justice questions. The 1992 gang rape of Bhanwari Devi in Bhateri, Rajasthan, which prompted the public interest litigation behind this judgment.
• The SHANTI Act, 2025: The SHANTI Act, 2025, short for Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India and passed in December 2025, repealed the Atomic Energy Act, 1962 and the Civil Liability for Nuclear Damage Act, 2010. It ended the state monopoly by letting private companies and joint ventures, with up to 49 per cent foreign investment, build, own and operate nuclear plants under tiered operator-liability caps. it opens small modular reactor projects to private players
• basic structure doctrine: Basic structure doctrine is the constitutional principle laid down in Kesavananda Bharati (1973) that Parliament may amend the Constitution under Article 368 but cannot destroy its basic structure. Features like supremacy of the Constitution, rule of law, judicial review, and federalism are beyond amendment. For UPSC mains, it is the central doctrine in any answer on the balance between Parliament's amending power and constitutional limits. Kesavananda Bharati v. State of Kerala, Supreme Court, 1973
• separation of powers: Separation of powers is the doctrine, articulated by Montesquieu, that liberty is protected when legislative, executive and judicial functions are vested in distinct organs that check one another. India adopts it partially: functional separation exists, but with overlaps like judicial review. UPSC significance: GS-2, the Indian Constitution and polity. Montesquieu's The Spirit of Laws (1748)
• Union of India: The Union of India is the constitutional name of the Indian state, comprising the States and Union Territories in the First Schedule, as Article 1 declares that India, that is Bharat, shall be a Union of States. It is the legal personality that can sue and be sued under Article 300 and that can acquire territory. For UPSC, the term is the starting point of every GS-2 discussion of Indian federalism. Article 1 of the Constitution

Practice questions