Judicial Review under the Constitution of India: Scope and Significance

1. Introduction

Imagine a government that passes a law overnight stripping citizens of their right to free speech, or an executive order that detains people indefinitely without trial. Who stops them? In India, it is the courts — armed with the power of judicial review. This power is one of the most vital features of Indian constitutional democracy and lies at the very heart of the rule of law.

Judicial review is the authority of courts to examine laws enacted by the legislature and actions taken by the executive, and to declare them unconstitutional if they violate the provisions of the Constitution. It acts as a constitutional check, ensuring that no organ of the state — however powerful — can override the supremacy of the Constitution.

This article offers a comprehensive overview of judicial review in India — its meaning, constitutional foundation, historical evolution, scope, landmark judgments, and its continuing relevance in contemporary India.

2. Meaning and Concept of Judicial Review

The term ‘judicial review’ refers to the process by which courts examine the validity of legislative and executive actions against the touchstone of the Constitution. If any law, ordinance, notification, or government action is found to be inconsistent with or violative of the Constitution, it is declared null and void.

The modern constitutional doctrine of judicial review is generally traced to the landmark decision of Marbury v. Madison (1803), where Chief Justice John Marshall held that it is the duty of the judiciary to say what the law is. India, while borrowing this idea, adapted it within the framework of its own written and supreme Constitution.

In India, judicial review operates at three levels:

Review of constitutional amendments — to test whether amendments violate the basic structure of the Constitution.
Review of legislation — to determine whether laws passed by Parliament or State Legislatures comply with constitutional provisions.
Review of executive actions — to test whether the government’s acts and orders are within the limits set by the Constitution and laws.

3. Constitutional Basis of Judicial Review

Unlike the United States, where judicial review is a judicial creation, the Indian Constitution expressly provides for it through several provisions:

Article 13

This is the primary basis of judicial review. Article 13(1) declares that all pre-constitutional laws inconsistent with fundamental rights shall be void to the extent of their inconsistency. Article 13(2) prohibits the State from making any law that takes away or abridges fundamental rights, and any such law shall be void.

Article 13(3) expressly defines “law” to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law.

Article 32

This gives every citizen the right to move the Supreme Court directly for enforcement of fundamental rights. Dr. B.R. Ambedkar called Article 32 ‘the heart and soul of the Constitution.’

The Supreme Court can issue writs of habeas corpus, mandamus, prohibition, certiorari, and quo warranto.

Article 226

High Courts are empowered to issue writs for enforcement of fundamental rights as well as for any other legal right, giving them a wider scope than Article 32.

Article 131

The Supreme Court has original jurisdiction in disputes between the Union and States, or between two or more States.

Article 136

Article 136 empowers the Supreme Court to grant special leave to appeal from judgments, decrees, determinations, sentences or orders passed by any court or tribunal (except those constituted under laws relating to the Armed Forces). This appellate jurisdiction strengthens constitutional supervision over the administration of justice.

Articles 227 and 246

Article 227 grants supervisory jurisdiction to High Courts over all courts within their territorial jurisdiction. Article 246 delineates the legislative competence of Parliament and State Legislatures through the three lists in the Seventh Schedule, making courts the arbiter of legislative boundaries.

4. Historical Development of Judicial Review in India

The history of judicial review in India is a story of constant tension between parliamentary sovereignty and constitutional supremacy. This journey can be traced through several distinct phases.

Early Phase (1950s–1960s)

After the Constitution came into force in 1950, Parliament believed it had unlimited power to amend the Constitution — including its fundamental rights provisions.

In Shankari Prasad v. Union of India (1951), the Supreme Court upheld Parliament’s power to amend fundamental rights, treating constitutional amendments as different from ordinary ‘law’ under Article 13.

This position was reaffirmed in Sajjan Singh v. State of Rajasthan (1965).

Shift in Golak Nath (1967)

The Supreme Court dramatically reversed its position in Golak Nath v. State of Punjab (1967).

An eleven-judge bench held, by a 6:5 majority, that fundamental rights were transcendental and immutable, and Parliament had no power to abridge or take them away even through constitutional amendment.

This led to a major constitutional crisis and prompted Parliament to enact the 24th, 25th, and 29th Constitutional Amendments.

The Landmark Turn — Kesavananda Bharati (1973)

In the watershed decision of Kesavananda Bharati v. State of Kerala (1973), a thirteen-judge Constitution Bench — the largest ever assembled in Indian legal history — overruled Golak Nath by a slim 7:6 majority.

The Court held that while Parliament could amend any part of the Constitution, it could not alter or destroy its ‘basic structure.’

This Basic Structure Doctrine became the supreme limitation on Parliament’s constituent power and the strongest instrument of judicial review.

The court did not exhaustively define basic structure, but identified features such as supremacy of the Constitution, republican and democratic form of government, secularism, separation of powers, and judicial review itself.

5. Scope of Judicial Review

The scope of judicial review in India is broader than in many other democracies. It covers the following areas:

(a) Legislative Actions

Courts review whether laws are within the legislative competence of the enacting body (under Articles 246 and the Seventh Schedule), and whether they comply with fundamental rights (under Articles 14, 19, 21, etc.).

(b) Executive and Administrative Actions

Any executive order, government notification, or administrative decision that is arbitrary, unreasonable, or violates natural justice principles is subject to review.

(c) Constitutional Amendments

As established by Kesavananda Bharati, even constitutional amendments can be struck down if they destroy the basic structure of the Constitution.

(d) Delegated Legislation

Rules, regulations, and bye-laws made under statutory authority are reviewed to ensure they are intra vires (within) the enabling statute and do not violate constitutional provisions.

6. Landmark Supreme Court Judgments

Shankari Prasad v. Union of India, AIR 1951 SC 458

The Supreme Court upheld the First Constitutional Amendment and held that the word ‘law’ in Article 13 refers only to ordinary legislation, not to constitutional amendments. Parliament, therefore, had plenary power to amend fundamental rights.

Golak Nath v. State of Punjab, AIR 1967 SC 1643

The Court held that fundamental rights are given a transcendental position and Parliament has no power to amend Part III of the Constitution.

This decision established the supremacy of fundamental rights over Parliament’s amendment power and triggered a constitutional impasse between the judiciary and the legislature.

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

Perhaps the most consequential judgment in Indian constitutional history, this case introduced the Basic Structure Doctrine.

The Court held that Parliament’s amending power under Article 368 is wide but not unlimited — it cannot destroy the essential features that form the identity of the Constitution. Judicial review itself was recognised as part of this basic structure.

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789

The Supreme Court struck down Sections 4 and 55 of the 42nd Constitutional Amendment, which sought to make Directive Principles supreme over Fundamental Rights and place Parliament’s amending power beyond judicial scrutiny.

The Court held that limited amending power is itself a basic feature, and any attempt to make it unlimited would destroy the Constitution’s essential identity.

This case powerfully reaffirmed that judicial review is inviolable.

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125

A seven-judge bench held that the power of judicial review vested in the High Courts and the Supreme Court under Articles 226/227 and 32 respectively forms part of the basic structure of the Constitution and cannot be ousted even by a constitutional amendment.

This judgment permanently secured the jurisdiction of constitutional courts from legislative exclusion.

7. Judicial Review vs. Judicial Activism vs. Judicial Restraint

These three concepts are closely related but distinct. Understanding their differences is essential for any law student.

Judicial Review

Judicial review is the foundational power — the authority of courts to examine whether laws and executive acts comply with the Constitution.

It is a power that exists by virtue of constitutional provisions and is reactive in nature: it operates when a party challenges a law or action before the court.

Judicial Activism

Judicial Activism refers to a proactive approach where courts go beyond interpreting the law and fill gaps left by the legislature or executive, often through Public Interest Litigation (PIL).

Classic examples include directions issued in Vishaka v. State of Rajasthan (1997) on workplace sexual harassment, and M.C. Mehta v. Union of India on environmental protection where courts virtually legislated in the absence of statutory frameworks.

Judicial Restraint

Judicial restraint is the philosophy that courts should exercise their powers conservatively, defer to the elected branches of government, and avoid policy-making.

Proponents argue that an unelected judiciary should not substitute its judgment for that of democratically elected representatives.

The debate between activism and restraint continues, the Constitution recognises judicial review as an indispensable constitutional safeguard.

8. Importance in Protecting the Constitution and Fundamental Rights

Judicial review performs several critical functions in Indian democracy:

Guardian of the Constitution: The Constitution is the supreme law. Judicial review ensures that neither Parliament nor State Legislatures can legislate contrary to it.
Protector of Fundamental Rights: Without judicial review, fundamental rights guaranteed under Part III would remain mere paper promises. Courts give them meaning by invalidating laws and actions that violate them.
Maintenance of Federal Balance: In a federal polity like India, disputes over legislative competence between the Union and States are resolved through judicial review, preserving the federal structure.
Check on Arbitrary Power: The doctrine of separation of powers is meaningless without a mechanism to enforce it. Judicial review prevents any organ from overstepping its constitutional bounds.

9. Criticisms and Limitations

Despite its undeniable importance, judicial review is not without its critics and limitations:

Counter-Majoritarian Concern: Courts are not elected bodies. When they strike down laws passed by a democratically elected legislature, it raises questions of democratic legitimacy. Critics argue that unelected judges should not override the will of the people’s representatives.
Judicial Overreach: When courts go beyond their constitutional mandate and begin issuing directions that resemble policy or legislation, they risk encroaching upon the executive and legislative domains, disturbing the separation of powers.
Vagueness of Basic Structure: The Basic Structure Doctrine, while a protective shield, has been criticised for being open-ended and judicially defined. The lack of a definitive, exhaustive list creates uncertainty.
Access and Pendency: The effectiveness of judicial review is undermined by massive pendency of cases in Indian courts. Many deserving cases never reach review due to delays, costs, and procedural barriers.

10. Contemporary Relevance

Judicial review has never been more relevant than in today’s India. Several recent developments demonstrate its continued vitality:

In Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1 (NJAC Case) — the Supreme Court struck down the 99th Constitutional Amendment and the National Judicial Appointments Commission Act on the ground that they violated the independence of the judiciary, which is part of the basic structure.

This was a bold and controversial exercise of judicial review, affirming the judiciary’s role as the ultimate guardian of constitutional values.

In Justice K.S. Puttaswamy v. Union of India (2017), a nine-judge bench unanimously held that the right to privacy is a fundamental right under Article 21 — a powerful reaffirmation that judicial review can expand constitutional protection rather than merely preserve it.

Courts continue to grapple with constitutional challenges relating to electoral bonds, internet shutdowns, freedom of speech, preventive detention, digital privacy, and other evolving constitutional issues.

These cases underscore that judicial review is a living, breathing doctrine that evolves with the constitutional needs of society.

11. Conclusion

Judicial review is not a luxury of Indian democracy — it is its cornerstone. Without this power, the Constitution would be a parchment barrier, and fundamental rights mere aspirations.

Through the doctrine of basic structure, the writ jurisdiction under Articles 32 and 226, and decades of landmark judgments, the Indian judiciary has established itself as a vigilant and independent guardian of constitutional values.

The journey from Shankari Prasad to Kesavananda Bharati, from Minerva Mills to L. Chandra Kumar, reflects a remarkable constitutional evolution — one where the judiciary has repeatedly stood between the citizen and unchecked state power.

The tension between parliamentary sovereignty and judicial oversight is not a flaw in the system; it is the system working exactly as intended.

As future lawyers and legal professionals, understanding judicial review is not just an academic exercise — it is an essential tool for defending rights, challenging injustice, and preserving the democratic republic that the Constitution created.

In the words of the Supreme Court in Kesavananda Bharati, the Constitution is not to be treated as ‘a document to be amended at will’; it is the fundamental law that binds us all.

References

Shankari Prasad v. Union of India, AIR 1951 SC 458.
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1 (NJAC Case).
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
M.P. Jain, Indian Constitutional Law (8th ed., LexisNexis, 2018).
D.D. Basu, Introduction to the Constitution of India (23rd ed., LexisNexis, 2019).
V.N. Shukla, Constitution of India (13th ed., Eastern Book Company, 2017).
Articles 13, 32, 131, 136, 226, 227, and 246, Constitution of India, 1950.