Judicial Review and Public Interest Litigation (PIL)

     Judicial Review means the power of the judiciary to pronounce upon the Constitutional validity of the acts of public authorities, both executive and legislature. In any democratic society, judicial review is the soul of the system because without it democracy and the rule of law cannot be maintained. Judicial review in India is an integral part of the Constitution and constitutes the ‘basic structure’ of the Constitution. The whole law of judicial review has been developed by judges on a case to case basis. Consequently, the right of seeking judicial review depends on the facts of each individual case; however, there cannot be a review of an abstract proposition of law.
     Though ‘judicial review’ does not find mention in our Constitution, this power has been derived by the judiciary from various provisions. It is the duty of the Supreme Court to safeguard and protect the Fundamental Rights of people and thus it is invested with the power of judicial review under Article 32 and to interpret the Constitution.
     The Supreme Court’s power of judicial review extends to Constitutional Amendments. However, Constitutional Amendment review by judiciary in relation to Fundamental Rights and its legal validity has been a contentious political issue.
Parliament can amend the Constitution under Article 368 but such amendments should not take away or violate Fundamental Rights and any law made in contravention with this rule shall be void. Before Golakhnath case (1967) the courts held that a Constitutional Amendment is not law within the meaning of Article 13 and hence, would not be held void if it violated any fundamental right.
In Golakhnath case it was settled that
i) all amendments be law [13(3)]
ii) Fundamental Rights are transcendental and immutable, so cannot be amended, nonetheless to amend Fundamental Rights a new Constituent Assembly needs to be convened, and
iii) Constitutional Amendment is an ordinary legislative power.
       In 1971, Parliament, by the 24th Constitutional Amendment, reversed the Golakhnath judgements by declaring Constitutional Amendments made under Article 368, not to be as ‘law’ within the meaning of Article 13 and the validity of the Constitutional Amendment Act shall not be open to question on the ground that it takes away or affects Fundamental Rights [Art.368 (3)].
     In 1972, the Parliament passed the 25^th Constitutional Amendment Act allowing the legislature to encroach on Fundamental Rights if it was said to be done pursuant to giving effect to the Directive Principles of State Policy. The 28th Amendment Act ended the recognition granted to former rulers of Indian states and their privy purses were abolished. In the famous Keshavnanda Bharati case, 1973, the court held that the Parliament could amend even the Fundamental Rights, but it was not competent to alter the ‘basic structure’ or ‘framework’ of the Constitution. The 42nd Amendment Act (1976) declared that Article 368 was not subject to judicial review by inserting clause (4) and (5) in Article 368.
However, in 1980 in Minerva Mills case, court struck down clause (4) and (5) from Article 368 and maintained that ‘judicial review’ is the basic feature of the Indian Constitutional system which cannot be taken away even by amending the constitution. The Supreme Court, since then, has been defining the ‘basic structure’ case by case.
     Public Interest Litigation (PIL) is a socio-economic movement generated by the judiciary to reach justice especially to the weaker sections of the society. The idea came from ‘atio popularis of the Roman jurisprudence, which allowed court access to every citizen in matters of public wrongs.
The purpose of PIL is not the enforcement of the right of one person gainst the other but to reach justice to the deprived sections of the society. The court is not exercising any extra-constitutional jurisdiction and is now firmly rooted in Article 14, i.e., protection against all arbitrariness and lawlessness in administrative actions, and Article 21 that provides for protection of life embodying everything that goes for a dignified living, including rightful concern for others and Directive Principles applying to weaker sections.
    The granting of the right to PIL has led to plethora of litigations in the courts, indicative of the development of democratic rights by the judiciary. S.P.Sathe has suggested that the Supreme Court has been working under these patterns:
i) Interpretational thrusts with a view to extending judicial control over other organs of the state to ensure liberty, dignity, equality and justice to the individual and greater accountability of the governing institutions.
ii) Interpretational strategies with a view to facilitate social change, which would promote greater protection of the minorities, weaker sections of the society and political and religious dissenters.
iii) Innovating new methods for increasing access to justice (like PIL and Lok Adalats).