Judiciary, Judicial Review & Fundamental Rights — Practice

Question 1

On what constitutional provisions does judicial review rest in India, and why is it significant that it forms part of the basic structure? (10 marks, ~150 words)

Accepted Answer

Judicial review in India rests on express constitutional text rather than on judicial assertion as in the United States. Article 13 declares void any law inconsistent with or in derogation of Fundamental Rights, supplying the substantive basis. Article 32 confers on the Supreme Court the power to issue writs for the enforcement of Fundamental Rights and is itself a Fundamental Right. Article 226 confers a wider writ jurisdiction on the High Courts, extending to the enforcement of Fundamental Rights and to any other purpose, meaning ordinary legal rights. Articles 131 to 136 establish the Supreme Court's original, appellate and special leave jurisdictions. The significance of judicial review's status as part of the basic structure, established through the Kesavananda line of reasoning and reaffirmed in subsequent judgments, is that it cannot be removed or curtailed even by constitutional amendment — a legislature dissatisfied with judicial scrutiny cannot amend the power away, which is precisely what makes the constitutional guarantees enforceable rather than dependent on legislative forbearance.

Question 2

Distinguish the writ jurisdiction of the Supreme Court under Article 32 from that of the High Courts under Article 226.

Accepted Answer

The two jurisdictions differ in scope, in status, and in the discretion available. In scope, Article 32 permits writs only for the enforcement of Fundamental Rights, while Article 226 is wider — High Courts may issue writs for the enforcement of Fundamental Rights and also for any other purpose, which has been read to include ordinary legal and statutory rights. In status, Article 32 is itself a Fundamental Right contained in Part III, which means the remedy cannot be withdrawn by ordinary legislation and its suspension is constrained even during an emergency following the 44th Amendment's protection of Articles 20 and 21; Article 226, though a constitutional provision, is not a Fundamental Right. In discretion, the Supreme Court has held that it may decline to entertain an Article 32 petition where an equally efficacious alternative remedy exists, typically directing the petitioner to the High Court first, whereas the High Courts' Article 226 jurisdiction is territorially bounded by the location of the authority or the accrual of the cause of action. The practical result is that Article 226 is the wider and more frequently used jurisdiction, while Article 32 carries the stronger guarantee.

Question 3

How did the collegium system emerge given that Articles 124 and 217 speak only of 'consultation' with the Chief Justice?

Accepted Answer

The constitutional text provides that judges of the Supreme Court and High Courts are appointed by the President after consultation with the Chief Justice of India and such other judges as the President may deem necessary — language that on its face leaves the appointing decision with the executive and requires only that judicial opinion be sought. The collegium system emerged from judicial interpretation of that word across three judgments known as the Judges cases. The first, in 1981, took the view that consultation did not mean concurrence, leaving executive primacy intact. The second, in 1993, reversed this position, holding that consultation must mean concurrence and that the Chief Justice's view, formed in consultation with senior colleagues, would have primacy. The third, a 1998 advisory opinion under Article 143, refined the mechanism by specifying that the Chief Justice must act through a collegium of senior judges rather than individually, establishing the five-judge collegium for Supreme Court appointments and the three-judge collegium for High Court recommendations. The result is a system with no direct textual foundation, constructed to secure judicial independence in appointments, which is both its justification and the basis of the criticism that it lacks constitutional authorisation.

Question 4

Why did the Supreme Court strike down the National Judicial Appointments Commission in 2015, and what does the reasoning imply for future reform? (15 marks, ~250 words)

Accepted Answer

The NJAC was established by the 99th Constitutional Amendment (2014) and an accompanying Act, creating a six-member commission comprising the Chief Justice of India, the two next senior-most Supreme Court judges, the Union Law Minister, and two eminent persons selected by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition. A five-judge bench struck down both the amendment and the Act in October 2015 by a 4:1 majority.

The reasoning turned on the composition and the voting rule taken together. With three judicial members out of six, and a provision permitting any two members to veto a recommendation, the judicial members could be overruled by a combination that included non-judicial members — meaning the judiciary lacked primacy in the selection of its own members. The majority held that primacy of the judiciary in judicial appointments is an element of judicial independence, which forms part of the basic structure, and that an amendment abridging it was therefore beyond Parliament's amending power under Article 368.

The implication for future reform follows from what the Court objected to and what it did not. The objection was to the executive's effective blocking capacity within the appointment process, not to external participation, transparency requirements, or structured procedure as such. This leaves substantial reform space intact: publishing selection criteria, recording and disclosing reasons for recommendations, establishing a permanent secretariat with independent evaluation, and creating a complaints mechanism are all consistent with the judgment because none transfers selection power away from the judiciary.

The judgment's weakness, widely noted, is that having struck down the reform it did not itself remedy the opacity it acknowledged, leaving an impasse that the Memorandum of Procedure has yet to resolve.

Question 5

"Public interest litigation has expanded access to justice at the cost of judicial restraint." Critically examine. (15 marks, ~250 words)

Accepted Answer

Both halves of the statement describe real developments, and the assessment turns on whether the trade-off has been worth making.

The access gains are substantial and specific. By relaxing locus standi from the late 1970s, the Court permitted public-spirited persons to move it on behalf of those who could not approach it themselves, and treated letters as petitions in appropriate cases. This brought prisoners, bonded labourers, and other groups without practical access into the constitutional remedy for the first time. It produced the environmental jurisprudence reading a clean environment into Article 21, and it generated binding guidelines where the legislature had not acted — the Vishaka guidelines on workplace sexual harassment (1997), later codified in 2013, being the clearest instance.

The restraint costs are equally specific. PIL has drawn courts into policy domains where they possess neither the technical expertise nor the democratic mandate to make allocative choices, and continuing-mandamus jurisdiction has left courts supervising administration over extended periods, a function institutionally better suited to executive agencies. The relaxed standing rule has attracted frivolous and publicity-driven petitions that consume scarce judicial time in a system already carrying over five crore pending cases. And no consistent principle has been articulated determining which policy questions are justiciable, leaving the boundary to case-by-case discretion.

The defensible assessment is that the access gains were achieved in circumstances where other institutions had demonstrably failed the affected groups, which justified the original expansion, but that the absence of a stated justiciability principle is a genuine institutional weakness rather than a necessary cost. The corrective lies in articulating such a principle and in the Court's own use of costs and screening, not in reversing the standing relaxation.

Question 6

Trace the expansion of Article 21 from A.K. Gopalan to Maneka Gandhi and explain why the shift was constitutionally significant. (15 marks, ~250 words)

Accepted Answer

A.K. Gopalan (1950) established the restrictive starting position on two points. First, it treated the Fundamental Rights as separate, self-contained compartments, so that a law depriving personal liberty had to satisfy Article 21 alone and could not be tested against Articles 14 or 19. Second, it read 'procedure established by law' in Article 21 literally: if a competent legislature had enacted a procedure, Article 21 was satisfied, whatever the content of that procedure. The framers had considered and deliberately declined the American 'due process' formulation, and Gopalan gave effect to that choice.

Maneka Gandhi (1978) reversed both holdings. It held that the Fundamental Rights are not watertight compartments but interconnected, so that a law affecting personal liberty must satisfy Article 14's non-arbitrariness requirement and, where applicable, Article 19's reasonableness standard as well. And it held that the procedure contemplated by Article 21 must be fair, just and reasonable rather than merely enacted — a procedure that is arbitrary or oppressive does not qualify as 'procedure' for constitutional purposes.

The significance is that this achieved through interpretation substantially what the Constituent Assembly had declined to write into the text. Article 21 became a substantive guarantee rather than a formal one, and the interconnection of rights meant every deprivation of liberty could be tested against multiple constitutional standards simultaneously.

Everything that followed rests on this foundation. The reading of livelihood, health, shelter, legal aid, a clean environment and eventually privacy into Article 21 was possible only because Maneka had converted it into a substantive provision capable of bearing that content.

Question 7

State the proportionality test articulated in K.S. Puttaswamy (2017) and explain why it is analytically useful beyond privacy cases.

Accepted Answer

Puttaswamy, decided by a nine-judge bench, held privacy to be a fundamental right intrinsic to life and personal liberty under Article 21, and articulated a structured test for assessing restrictions on that right. The test has four limbs: the restriction must pursue a legitimate state aim; there must be a rational connection between the measure adopted and that aim; the measure must be necessary, in the sense that no less restrictive alternative would achieve the aim as effectively; and the measure must be proportionate in the narrow sense, meaning the benefit secured must outweigh the burden imposed on the right. Its analytical usefulness beyond privacy lies in supplying a structured standard applicable to any rights restriction. Before it, an answer or an argument challenging a restriction typically asserted that it was unreasonable or excessive, which is a conclusion rather than a method. The proportionality test converts that into a sequence of separately assessable questions, each of which can be answered with evidence — which is why it is now invoked across questions on surveillance, data protection, speech restrictions, freedom of assembly and preventive detention. In an examination answer, applying the four limbs explicitly to the restriction in question demonstrates analytical method rather than opinion.

Question 8

Why is the distribution of pending cases across court levels more analytically important than the total figure?

Accepted Answer

The total pendency figure, now well above five crore cases across all levels, conveys scale but not diagnosis, and answers that stop at the total tend to propose remedies aimed at the wrong tier. The decisive fact is distributional: upward of 88% of pending cases sit in the district and subordinate courts, with High Court pendency in the region of sixty-three lakh and Supreme Court pendency around ninety thousand. This matters for three reasons. First, it locates the problem in the tier that most reform discussion neglects, since public and media attention concentrates on the higher judiciary. Second, it identifies where capacity investment yields the greatest return — subordinate court vacancies, infrastructure and case-flow management affect the tier holding the overwhelming majority of cases, whereas increasing Supreme Court strength addresses under two per cent of the backlog. Third, it changes the character of the recommended reforms, since district-court delay is driven substantially by adjournment practice, process-serving delays and inadequate court infrastructure rather than by the doctrinal complexity that occupies the higher courts. An answer that leads with the distribution and derives its recommendations from it is doing analysis; one that cites the total and calls for more judges is not.

Question 9

Analyse the principal causes of judicial pendency in India and suggest correspondingly targeted remedies. (15 marks, ~250 words)

Accepted Answer

Pendency is best analysed as an imbalance between case inflow and disposal throughput, with several distinct causes on each side requiring different remedies.

On capacity, judicial vacancies are substantial — several thousand posts unfilled in the subordinate judiciary and significant High Court vacancies against sanctioned strength — and India's judge-to-population ratio remains low by comparative standards, with successive Law Commission recommendations to raise it unimplemented. The targeted remedy is time-bound recruitment through an established mechanism rather than ad hoc filling, since vacancy arises predictably from retirement.

On inflow, the government is the largest single litigant, and a substantial share of state litigation consists of routine appeals filed without merit assessment, often to avoid the appearance of conceding. A genuine national litigation policy, with departmental accountability for filing decisions and mandatory pre-litigation review, would reduce inflow more directly than any capacity measure.

On procedure, liberal adjournment practice, interlocutory appeals that suspend main proceedings, and the absence of structured case-flow management extend the life of individual cases well beyond what their complexity requires. Remedies here are procedural: enforcing existing adjournment limits, restricting interlocutory appeals, and adopting differentiated case-flow management that streams cases by complexity.

On alternatives, mediation, Lok Adalats and arbitration divert a smaller share of disputes than their design contemplates, and pre-litigation mediation remains under-institutionalised for categories where it is most suitable.

The general point is that pendency has no single cause and therefore no single remedy — an answer proposing only more judges addresses one of at least four distinct contributors, and not the one with the largest near-term effect on inflow.

Question 10

What is the rationale for tribunals, and what concerns have arisen about their functioning?

Accepted Answer

Tribunals were introduced principally through Articles 323A and 323B, inserted by the 42nd Amendment, to provide specialised adjudication in defined areas — service matters, taxation, company law, environment, and others — on the reasoning that technical subject matter is better decided by bodies combining legal and domain expertise, and that diverting these categories from the regular courts would reduce their burden. The rationale is therefore both expertise and decongestion. Several concerns have arisen in practice. The first is appointment and composition: where the executive controls appointments, tenure and service conditions of members of tribunals adjudicating disputes to which the government is frequently a party, independence is structurally compromised, and courts have repeatedly intervened to insist on judicial dominance in selection committees and on secure tenure. The second is that vacancies in tribunals have often been severe and prolonged, so that bodies created to speed adjudication have themselves accumulated backlogs. The third is that appeals from tribunals to the higher judiciary have in some categories reproduced rather than reduced the litigation chain. The result is that the decongestion rationale has been only partly realised, and successive judgments have had to lay down conditions for tribunal composition and functioning to preserve the adjudicatory independence the original scheme did not adequately secure.

Question 11

Distinguish judicial activism from judicial overreach, and explain why the distinction is contested.

Accepted Answer

Judicial activism describes a court interpreting constitutional provisions expansively and intervening actively to enforce rights, particularly where other institutions have failed to act — reading livelihood and a clean environment into Article 21, or issuing the Vishaka guidelines in the absence of legislation, are standard examples. Judicial overreach describes a court exceeding its institutional competence by entering domains constitutionally allocated to the legislature or executive — directing specific budgetary allocations, supervising administrative operations over extended periods, or making policy choices requiring the balancing of interests that courts are not equipped to weigh. The distinction is contested because it has no agreed boundary and is frequently applied retrospectively according to whether one approves of the outcome. The same judicial technique — reading a right expansively and issuing directions to enforce it — is characterised as activism when it protects an interest the observer values and as overreach when it constrains a policy the observer supports. A more analytically stable way to draw the line, and one worth using in an answer, is institutional rather than substantive: intervention is defensible where a right is being violated and the ordinary political process is structurally unable to remedy it, and becomes problematic where the court substitutes its judgment on a question that involves allocating resources among competing legitimate claims, which is precisely the function representative institutions exist to perform.

Question 12

What mechanisms exist for judicial accountability in India, and why are they considered inadequate?

Accepted Answer

The principal constitutional mechanism is removal by impeachment under Articles 124(4) and 217, on grounds of proved misbehaviour or incapacity, requiring a motion supported by prescribed numbers of members, an inquiry by a statutory committee, and passage in both Houses by a special majority. Supporting mechanisms include the in-house procedure adopted by the judiciary for examining complaints against judges, the contempt jurisdiction which the judiciary itself controls, and the requirement of asset declarations adopted by resolution rather than by statute. These are considered inadequate for several reasons. The impeachment threshold is so high that no judge has been removed through the process to completion, which makes it a theoretical rather than an operative remedy and leaves a gap for misconduct falling short of what would sustain removal. The in-house procedure is internal, non-statutory, and its outcomes are not ordinarily published, so it provides limited external assurance. There is no independent complaints body with investigative capacity. And the opacity of the appointments process, discussed elsewhere in this chapter, means accountability is weak at entry as well as during tenure. Proposals accordingly focus on a statutory complaints and oversight mechanism with judicial majority, graded sanctions short of removal, and mandatory publication of outcomes — reforms that address the gap between the impeachment threshold and the conduct actually at issue.

Question 13

Explain how restrictions on Fundamental Rights are assessed, using Article 19 as the illustration.

Accepted Answer

Article 19(1) guarantees six freedoms, including speech and expression, assembly, association, movement, residence and profession. Each is subject to restriction under the corresponding clauses of Article 19(2) to (6), and the constitutional test has two components that a precise answer separates. First, the restriction must fall within one of the specific grounds enumerated for that freedom — for speech, these include the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offence. A restriction pursuing an objective outside these enumerated grounds is invalid regardless of how desirable the objective may be, which is why the enumeration matters and why answers should name the specific ground relied on. Second, the restriction must be reasonable, a requirement the courts have elaborated substantially — it must not be excessive or arbitrary, must bear a proximate rather than remote connection to the ground invoked, and following Puttaswamy is assessed through the structured proportionality standard, examining legitimate aim, rational connection, necessity and balance. The combination means a restriction can fail either by pursuing an unlisted objective or by being disproportionate in pursuit of a listed one, and a strong answer identifies which of the two defects is in issue.

Question 14

"Judicial independence and judicial accountability are in tension, and Indian institutional design has favoured the former at the expense of the latter." Critically examine. (15 marks, ~250 words)

Accepted Answer

The tension is real but often overstated, and the claim about Indian design is substantially accurate while requiring qualification.

The tension exists because the instruments that secure independence — security of tenure, protection from executive influence in appointment, immunity from ordinary scrutiny of judicial conduct — are the same instruments that insulate judges from consequences for misconduct or poor performance. A mechanism that permitted easy removal or external review of judicial conduct would address accountability precisely by weakening the insulation independence requires.

Indian design has clearly favoured independence. Appointments were shifted to judicial primacy through the Judges cases and that primacy was constitutionally entrenched when the NJAC was struck down in 2015. Removal requires impeachment on a threshold so demanding that no judge has been removed through a completed process. Contempt jurisdiction is controlled by the judiciary itself. Asset declaration rests on internal resolution rather than statute. Each choice, considered individually, is defensible given the history that produced it — including the executive's attempts at supersession of judges during the Emergency period, which is the specific experience that made independence the overriding institutional priority.

The qualification is that the tension is not zero-sum across all mechanisms. Transparency reforms in appointments — published criteria, recorded reasons, an independent secretariat — improve accountability without transferring any selection power to the executive. A statutory complaints mechanism with a judicial majority and graded sanctions short of removal would fill the gap between the impeachment threshold and the conduct actually at issue, again without executive control.

The defensible conclusion is that the current imbalance reflects a historically explicable but now excessive caution, and that the available reforms are precisely those that improve accountability without touching independence.

Question 15

Using the Vishaka guidelines as an example, examine the legitimacy of courts issuing binding directions in the absence of legislation.

Accepted Answer

In Vishaka (1997), the Supreme Court laid down binding guidelines on the prevention of sexual harassment at the workplace, in the absence of any statute on the subject, drawing on Articles 14, 19 and 21 and on India's international obligations, and directed that the guidelines operate as law until Parliament legislated. Parliament did so in 2013, substantially codifying the framework the Court had established. The case for legitimacy rests on three grounds: a fundamental right was being violated with no available remedy; the Constitution obliges the Court to enforce Fundamental Rights under Article 32, an obligation that cannot be defeated by legislative silence; and the guidelines were expressly interim, framed to operate only until the legislature acted, so the Court did not claim a permanent law-making role. The case against is that the Court legislated in substance, prescribing detailed obligations on private employers without the consultative process, evidentiary base or democratic mandate that legislation carries, and that judicial willingness to fill gaps may reduce legislative urgency to address them. The balanced position is that the intervention was justified by the specific conditions present — an identified rights violation, complete legislative absence, and an expressly interim remedy — and that the legitimacy of any comparable intervention should be assessed against those same conditions rather than assumed from the Vishaka precedent generally.

Practice — Judiciary, Judicial Review & Fundamental Rights

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