Public Interest Litigation and the Separation of Powers: Where Does Judicial Review End?

At Dhruv Chawla Law Offices, we have always believed that public interest litigation occupies a unique position within India's constitutional framework. It is one of the few jurisdictions where a citizen may approach a constitutional court not for a private grievance, but for a larger public cause.

At the same time, PIL jurisdiction carries with it an equally important constitutional restraint. Courts are not policymakers. They do not govern the country, draft legislation or formulate executive policy. Their role is to ensure that public authorities act within the confines of the Constitution and the law.

Navigating that distinction is often the most challenging aspect of public interest litigation.

Over the years, our office has had the opportunity to appear in matters involving environmental regulation, public health, regulatory compliance and statutory enforcement. While the subject matter of these proceedings has varied considerably, a common question has repeatedly emerged before the courts:

Where does judicial review end and public policy begin?

The question is neither academic nor theoretical.

Every public interest lawyer eventually confronts it.

The issue affects thousands, sometimes millions, of people. The public injury appears obvious. The governmental response appears inadequate. The law may exist on paper, but its implementation appears ineffective. In some cases, there may be no discernible framework at all.

Yet the moment a Public Interest Litigation is filed, a familiar objection emerges.

"The Court cannot enter the policy domain."

The objection is legally sound. It is also only half the story.

Some of the most transformative changes in modern India have emerged from the exercise of public interest jurisdiction. Environmental protections, prison reforms, workplace safeguards, food security measures and institutional accountability mechanisms have all been shaped, at least in part, through judicial intervention. Yet courts routinely remind litigants that they are not policymakers, economists, environmental experts, legislators or administrators.

This apparent contradiction lies at the heart of Public Interest Litigation jurisprudence.

If courts cannot frame policy, when can they interfere with it?

The answer lies in understanding a distinction that is frequently overlooked.

Judicial review does not end where policy begins. It ends where legality ends.

The Constitutional Foundation

The power of constitutional courts to entertain Public Interest Litigations is rooted in Articles 32 and 226 of the Constitution of India. Over the decades, the Supreme Court expanded traditional rules of locus standi to enable public-spirited individuals to approach courts on behalf of those unable to do so themselves.

Decisions such as S.P. Gupta v. Union of India¹ and Bandhua Mukti Morcha v. Union of India² transformed access to justice by recognising that constitutional rights would remain illusory if only those directly affected could seek judicial enforcement.

At the same time, courts repeatedly emphasised that PIL jurisdiction was not intended to convert judges into administrators.

The doctrine of separation of powers remains a fundamental feature of the Constitution. Legislatures enact laws. Executives implement them. Courts interpret and enforce them.

The difficulty arises when those boundaries begin to overlap.

Why Courts Usually Avoid Policy Questions

Indian courts have consistently held that they are not equipped to evaluate the wisdom of policy choices.

In BALCO Employees' Union v. Union of India³, the Supreme Court cautioned that economic and administrative policies are ordinarily best left to elected governments. Similarly, in Narmada Bachao Andolan v. Union of India⁴, the Court reiterated that judges are not experts in matters involving technical, economic or scientific policy.

This principle is both logical and necessary.

Courts function through adversarial adjudication. Policymaking, by contrast, involves balancing competing social, economic, environmental and political considerations. Judges may determine legality, but they cannot realistically substitute their own preferences for those of democratically accountable institutions.

Consequently, a PIL that merely asks the Court to formulate a better policy is unlikely to succeed.

The constitutional role of courts is not to govern.

It is to ensure that governance remains lawful.

When Courts Do Interfere

The proposition that courts cannot interfere in policy matters is often stated too broadly.

The reality is far more nuanced.

While courts ordinarily refrain from framing policy, they routinely intervene where policy violates constitutional principles, exceeds statutory authority, ignores mandatory considerations, or fails to discharge legal obligations.

The question is therefore not whether a matter involves policy.

The question is whether it involves legality.

When Policy Appears Inconsistent with the Statute

One of the most significant grounds of intervention arises where delegated legislation, executive instructions or policy frameworks appear inconsistent with the parent statute under which they are framed.

The Supreme Court in Indian Express Newspapers v. Union of India⁵ and later in State of Tamil Nadu v. P. Krishnamurthy⁶ recognised that subordinate legislation remains subject to judicial review on several well-established grounds, including inconsistency with the parent enactment and manifest arbitrariness.

This distinction is particularly important.

A court may not be concerned with whether a policy is ideal.

It may, however, examine whether the policy faithfully advances the legislative objective it purports to serve.

This question arose in proceedings instituted by the author before the Punjab and Haryana High Court concerning groundwater depletion and the effectiveness of the regulatory framework governing groundwater extraction. The challenge did not invite the Court to formulate a new groundwater policy. Rather, it questioned whether the existing framework adequately addressed the statutory objectives underlying the legislation itself. During the proceedings, the Court called upon the State to explain why various stakeholder objections had allegedly not been adequately considered and sought responses concerning the broader issue of groundwater conservation.

More significantly, while considering the matter, the Court specifically directed arguments on the limits of judicial review in policy matters, recognising that the proceedings raised questions extending beyond the merits of the policy itself.

The issue before the Court was not whether judges should formulate a groundwater policy.

The issue was whether a policy framed under statutory authority remained consistent with the objectives and framework of the law itself.

That distinction lies at the heart of judicial review.

When the Law Exists but the Framework Does Not

A second category arises where the law exists, but the institutional mechanisms necessary to implement it are absent, inadequate or ineffective.

In such situations, courts are often not creating new obligations. They are ensuring that existing ones are capable of being fulfilled.

This principle has informed several landmark decisions, including Vineet Narain v. Union of India⁷, where the Supreme Court issued directions to strengthen institutional accountability mechanisms pending legislative action.

A similar concern arose in proceedings in which the author appeared before the Delhi High Court relating to the alleged diversion and export of pharmaceutical products intended solely for domestic consumption. The grievance was not directed against any legislative policy concerning pharmaceutical exports. Rather, it highlighted the absence of an effective mechanism to ensure compliance with existing regulatory requirements. While issuing notice, the Court required the concerned authority to specifically explain what further steps had been taken to ensure compliance with its own Office Memorandum dealing with such exports.

Again, the Court was not asked to formulate pharmaceutical policy.

It was asked whether the existing legal and regulatory framework was being meaningfully implemented.

When There Is a Straightforward Violation of Law

The third category is perhaps the simplest.

Where governmental or private conduct is plainly contrary to law, courts need not enter the policy domain at all.

Their role is simply to enforce compliance.

The same principle was evident in proceedings instituted by the author before the Delhi High Court concerning the display of alcohol-related advertisements allegedly contrary to the applicable regulatory framework. The petition ultimately achieved its objective when the impugned advertisements were removed, following which the grievance stood redressed and the proceedings were disposed of.

The Court was not required to reconsider legislative policy concerning alcohol regulation.

It was merely confronted with allegations of non-compliance with existing legal norms.

The distinction may appear subtle.

Constitutionally, it is profound.

The Forgotten Requirement: Who Cannot Approach the Court?

Perhaps the most misunderstood aspect of PIL jurisprudence concerns the identity of those on whose behalf the Court's jurisdiction is invoked.

Public Interest Litigation was never intended to become representative litigation for well-resourced private actors.

The jurisdiction emerged because certain classes of persons lacked the practical ability to approach courts themselves.

In State of Uttaranchal v. Balwant Singh Chaufal⁸, the Supreme Court reiterated the need for courts to scrutinise the bona fides of PIL petitioners and guard against misuse of the jurisdiction.

The principle is straightforward.

A PIL should ordinarily seek to vindicate rights affecting a broader class of persons who, because of poverty, vulnerability, social disadvantage or practical incapacity, are unable to seek judicial redress themselves.

Courts are understandably reluctant to entertain petitions that merely seek to advance private commercial interests under the guise of public interest.

The credibility of the jurisdiction depends upon this distinction.

The strongest PILs are not those that speak the loudest.

They are those that demonstrate genuine public injury and a genuine inability of affected persons to effectively seek relief on their own.

Conclusion

Perhaps the most common misconception about Public Interest Litigations is that they invite courts to govern.

They do not.

Their constitutional purpose is far narrower and far more important.

Courts are not ordinarily concerned with whether a policy is wise. They are concerned with whether it is lawful.

They may intervene where constitutional guarantees are violated, where statutory duties remain unfulfilled, where delegated legislation exceeds its authority, where a regulatory framework fails to meaningfully advance the purpose for which it was created, or where legal obligations exist only on paper.

What they ordinarily cannot do is substitute their own policy preferences for those of elected governments.

The separation of powers therefore does not mark the end of judicial review. It marks its boundary.

Every successful PIL operates within that boundary.

Every unsuccessful one attempts to cross it.