Author: Naman Malik
To the Point
Core Constitutional Conflict The divergence between India’s judicial supremacy and the UK’s absolute Parliamentary Sovereignty dictates profoundly different judicial functions. This conflict balances India’s quest for transformative output legitimacy against the UK’s commitment to democratic process legitimacy.
India’s Model PIL acts as a second best solution to regulatory slack. Its structural flaw is the utilization of continuous mandamus , which generates a democratic deficit by forcing judges, who lack administrative expertise , into executive governance.
UK’s Model Judicial Review UK Judicial Review is defined by constitutional restraint. The judiciary fulfils its proper constitutional role by deferring sensitive moral policy, as affirmed in R Nicklinson v Ministry of Justice 2014 , to the democratically accountable legislature.
Normative Conclusion The Indian PIL model is constitutionally incompatible with the UK’s structure . Superior accountability is achieved through intensive Proportionality Review and specialized non judicial redress mechanisms like the Ombudsman , which avoid judicial overreach.
Abstract
This article executes a doctrinal comparative analysis of judicial intervention in India and the United Kingdom UK, identifying a critical divergence in constitutional function. We argue that while India’s Public Interest Litigation PIL model, enabled by the Basic Structure Doctrine, has served as a powerful corrective to entrenched governance failures, it has concurrently generated profound legal problems relating to the separation of powers specifically, the challenge of judicial governance through continuous mandamus. Contrasting this with the UK’s judicial restraint, defined by Parliamentary Sovereignty, the article critically evaluates the trade-off between judicial activism output legitimacy and institutional preservation process legitimacy. The key finding is that PIL, although a necessary second best solution in India, remains constitutionally incompatible with the UK system, which instead relies on specialized, non judicial mechanisms to maintain democratic accountability.
Key Research Questions
What constitutional and historical factors enabled India to expand PIL, while the UK judiciary maintained restraint?
Does judicial activism fill governance gaps, or does it undermine democratic separation of powers?
Should the UK adopt a stronger PIL model, or does its current judicial review mechanism offer sufficient accountability?
Introduction
The judiciary, in any constitutional democracy, serves as the ultimate guardian of the rule of law and fundamental rights. Yet, the method and intensity of judicial intervention vary dramatically across jurisdictions. This article undertakes a Doctrinal Comparative Analysis of two common law inheritors, India and the United Kingdom UK, to dissect the fundamental divergence in their approach to public law. This divergence is India’s proactive judicial activism, channelled primarily through Public Interest Litigation PIL, versus the UK’s commitment to procedural review and judicial restraint.
The rise of PIL globally, traceable to similar movements in the mid 20th century United States, marked a shift from traditional adversarial litigation to a more expansive, social justice oriented role for the courts. In India, this shift has led to the judiciary positioning itself as an agent of social transformation, often filling governance vacuums. Conversely, the UK judiciary, bound by the principle of Parliamentary Sovereignty, has consciously maintained a narrower role, acting primarily as a constitutional referee to ensure the legality of executive action.
This comparison matters profoundly because it highlights how distinct constitutional cultures define the boundaries of democratic legitimacy, judicial independence, and the separation of powers. The contrast offers vital lessons regarding the institutional design necessary for effective rights protection in the face of executive overreach and governance failure.
Constitutional Contexts and Legal Foundations
The varying degrees of judicial intervention in India and the UK are directly traceable to their foundational constitutional structures and the location of ultimate legal authority.
India: Constitutional Supremacy and the Basic Structure Doctrine
India has a codified and established constitution that specifically affords the judiciary the authority of judicial review. This power was forcefully upheld in the landmark decision of Kesavananda Bharati v. State of Kerala 1973, in which the Supreme Court established the Basic Structure Doctrine (BSD). According to the BSD, Parliament’s amending power is limited, and it cannot change the Constitution’s fundamental ideals or structure. This theory provides the Indian judiciary with a formidable check on the legislative, giving the institution the confidence to engage in broad-based judicial activism. Article 226 empowers High Courts to issue writs for fundamental rights violations and other purposes, broadening the scope of this judicial remit.
United Kingdom: Parliamentary Sovereignty and Legal Constitution
The UK constitution is uncodified, defined as partially written and entirely uncodified. The basic premise of this structure is Parliamentary Sovereignty, which states that Parliament is the ultimate legal authority and that no individual or body has the capacity to overturn its
major laws. As a result, UK courts are unable to invalidate or overturn basic legislation through judicial review. Although the Human Rights Act of 1998 empowers courts to issue Declarations of Incompatibility for incompatible primary legislation, Parliament has the last say on whether to alter the law.
Case Studies in Constitutional Role: Defining the Limits of Authority
The Kesavananda Bharati decision is significant because it determined the judiciary’s ultimate legal authority as the custodian of the Constitution. In contrast, R Miller v Prime Minister 2019 emphasised the UK judiciary’s increasing role as a constitutional referee. The Supreme Court intervened not to dictate policy, but to protect the integrity of the democratic process, ruling that the Prime Minister’s advice to prorogue Parliament was illegal because it undermined the constitutional functions of Parliament scrutiny and legislation without reasonable justification. The court’s role was to police the legal process rather than the policy conclusion.
Expansion of Public Interest Litigation in India
The Indian judiciary revolutionized access to justice by dismantling the restrictive rule of locus standi, ushering in the era of PIL. However, the procedural reform brought a corresponding structural legal problem: the judiciary’s assumption of executive functions.
The Problem of Judicial Governance by Mandamus
The decisive shift happened in the case of S P Gupta v Union of India 1981, which allowed any genuine citizen to seek redress on behalf of marginalised communities. This innovation, combined with an expansive reading of Article 21 Right to Life that included rights such as free legal aid and a fast trial, as demonstrated in Hussainara Khatoon v State of Bihar 1979, enabled the judiciary to intervene directly in systemic failures.
The structural injunction, often known in India as continuous mandamus, raises a crucial legal question. This remedy requires continual judicial scrutiny of executive and legislative performance, such as environmental regulation or prison reform.
Democratic Deficit and Expertise: This technique significantly undermines the separation of powers. Unelected judges lack administrative skills and legislative accountability, leading to inefficient or unproductive policy decisions.
Institutionalized Executive Failure: PIL is ultimately a second-best answer. The need for continuous mandamus over decades indicates an institutionalised failure of the government to discharge its constitutional role. By repeatedly intervening, the judiciary risks normalising and sustaining executive weakness rather than driving meaningful institutional reform.
Judicial Populism: The judiciary’s broad role has been criticised as judicial populism. This phenomenon, driven by a desire to enforce Directive Principles, causes courts to become involved in politically motivated or frivolous litigation, necessitating the Supreme Court
imposing self-corrective measures such as penal costs in cases such as State of Uttaranchal v Balwant Singh 2010 to streamline the process.
Judicial Restraint and Public Law Litigation in the UK
In the UK, public law is mediated through Judicial Review (JR), which strictly limits the court’s scrutiny to legality rather than the merit of decisions. This approach is not passive, but a deliberate constitutional strategy to preserve democratic legitimacy.
The Boundary of Policy: Standards of Scrutiny
The UK system uses varying standards of scrutiny to filter out policy questions:
Wednesbury Unreasonableness: The traditional standard, affirmed in the Council of Civil Service Unions v Minister for the Civil Service GCHQ case, 1985, sets an exceptionally high bar for intervention. It is a highly deferential threshold designed to insulate executive policy choices from judicial substitution, thus reserving policy questions to the executive.
Proportionality Review: Applied when Convention rights under the Human Rights Act 1998 are engaged, this standard demands explicit weighing of competing aims, necessity, and balance. While more intensive than Wednesbury, it still stops short of granting the power to strike down primary legislation.
Critiquing Judicial Abnegation in Moral Policy
The UK judiciary’s commitment to restraint is most clearly defined in cases involving profound moral and ethical policy, such as in R Nicklinson v Ministry of Justice 2014.
In unanimously dismissing the challenge to the ban on assisted suicide, the court articulated a crucial legal finding: the law relating to assisting suicide cannot be changed by judicial decision. This was the fulfilment of the proper constitutional role. The court strategically deferred to Parliament as the institutional body representing the conscience of the nation, thereby rejecting the activist impulse to solve complex social issues without a democratic mandate. This constitutional deference maximizes the judiciary’s political capital, allowing it to intervene assertively, as in Miller No 2, only to police the legal process, not the policy outcome.
Comparative Analysis
The philosophical distinction between the two systems defines their ultimate purpose and institutional role, critically affecting which branch bears the burden of accountability for systemic failure:
India’s model effectively converts the court into a quasi legislative and quasi executive body, demonstrating a high capacity for social intervention but bearing the substantial institutional cost of violating the separation of powers. The UK model, conversely, accepts potential social policy gaps in Favor of maintaining strict constitutional discipline, thereby ensuring its rulings remain judicially enforceable and politically credible.
Should the UK Adopt the Indian PIL Model?
The analysis confirms that the wholesale adoption of the Indian PIL model is neither constitutionally viable nor institutionally desirable for the UK.
The Problem of Constitutional Incompatibility
The remedial effectiveness of PIL in India flows directly from the judicial supremacy established by the Basic Structure Doctrine, granting courts the power to mandate and supervise substantive policy. Without this power, the UK judiciary, constrained by the unassailable principle of Parliamentary Sovereignty, would lack the legal authority to implement PIL style mandates. Importing relaxed locus standi without the corresponding remedial teeth would simply render the judiciary vulnerable to being flooded with frivolous or politically motivated litigation.
Superiority of Non Judicial Alternatives
The Expanding Use of Public Interest Litigation in India versus Judicial Restraint in the United Kingdom:
A Comparative Examination of Judicial Philosophy and Constitutional Role
The UK’s robust system of administrative accountability serves as a superior, institutionally sound alternative to judicial policy substitution:
Non-judicial agencies, such as the Ombudsman, specialise in providing access to justice for issues related to public administration, rather than generalising. The Ombudsman’s primary goal is to improve public services and make expert recommendations, rather than engaging in the complex and time-consuming process of court litigation.
The UK system addresses collective and systemic damages through expert-driven mechanisms, avoiding the democratic deficiency in judicial policy making.
Conclusion
The comparative analysis reveals that judicial philosophy is a function of the underlying constitutional settlement. India’s PIL model, while embodying the success of transformative constitutionalism in bridging critical governance gaps, fundamentally struggles with the long term legal problem of institutionalizing executive failure. The judiciary is forced to adopt the role of both policymaker and administrator, a position that compromises the separation of powers and risks its own political legitimacy.
The UK system, which is defined by the rigorous constitutional constraint of parliamentary sovereignty, demonstrates that restraint is essential for preserving democratic structure. Its judiciary’s strength stems from its consistency as a constitutional referee, setting the legal bounds of power while avoiding the policy realm, as Nicklinson demonstrated.
The primary legal conclusion is that remedies determine function. The goal for the UK should not be to import the Indian locus standi, but rather to ensure that its current mechanisms are as effective as possible by intensifying proportionality review where rights are involved and strengthening non-judicial remedies such as the Ombudsman to manage collective administrative failure. This approach safeguards rights protection without undermining the core democratic principle of Parliamentary Sovereignty.
FAQs
Q: What is the fundamental constitutional determinant for the divergence in judicial approach?
A: India’s activism rests on the Basic Structure Doctrine , asserting judicial supremacy over the constitution. The UK’s restraint is mandated by Parliamentary Sovereignty , prohibiting courts from quashing primary legislation .
Q: How was the doctrine of locus standi liberalized to facilitate Public Interest Litigation in India?
A: The requirement for personal injury was relaxed in S P Gupta v Union of India 1981 . This ruling allowed any bona fide citizen to petition the court on behalf of marginalized public interests .
Q: What institutional challenge does India’s PIL model pose to the constitutional separation of powers?
A: The primary challenge is the use of continuous mandamus , a structural injunction. This compels judges to undertake administrative monitoring, resulting in a democratic deficit due to the judiciary’s inherent lack of administrative expertise .
