Judicial Review in India
Judicial review is one of the most important features of the Indian Constitution. It means the power of the judiciary—mainly the Supreme Court and the High Courts—to examine laws, executive orders, and even constitutional amendments to ensure that they do not violate the Constitution. In simple words, judicial review allows the courts to check whether the government is working within the limits set by the Constitution. If any law or action goes against the Constitution, the courts can declare it invalid or void. This power acts as a safety valve to protect citizens’ rights and to maintain the supremacy of the Constitution.
In a democracy like India, where the government is elected by the people, it is essential that power is not misused. Judicial review ensures that the legislature and executive do not cross their limits and that fundamental rights of citizens are protected. This concept came from the American Constitution, but over time India has developed its own system and principles of judicial review. To understand how it works, it is important to know its meaning, history, constitutional basis, scope, types, important cases, and present-day relevance.
Meaning and Concept of Judicial Review
Judicial review is the power of the courts to examine the actions of the legislative, executive, and sometimes even judicial authorities, to ensure they conform to the Constitution of India. If any action, order, or law is inconsistent with the Constitution, the courts have the power to strike it down. The main idea is that the Constitution is the highest law of the land, and no authority is above it.
This power helps in maintaining the rule of law, which means that the country is governed by law and not by the whims of individuals. Judicial review is not aimed at making the judiciary more powerful than the legislature or executive. Rather, it is a mechanism to maintain balance among the three organs of the government and to prevent abuse of power. It acts like a referee, making sure every organ functions within its constitutional limits.
Historical Background
The concept of judicial review first developed in the United States. The famous American case Marbury v. Madison (1803) laid down the principle that courts have the power to review laws and declare them void if they conflict with the Constitution. When the Indian Constitution was drafted, the framers borrowed this concept but adapted it to Indian conditions.
In India, even before independence, there were instances of courts exercising some form of review. The Government of India Act, 1935 gave limited powers to the Federal Court and High Courts to check legislative competence. However, the real foundation of judicial review was laid after the adoption of the Constitution in 1950. The makers of the Constitution wanted an independent judiciary to act as the guardian of the Constitution, so they explicitly provided for judicial review in various articles.
Constitutional Basis of Judicial Review
The Constitution of India does not use the exact phrase “judicial review,” but several articles clearly provide for it. Article 13 declares that any law which violates the fundamental rights is void. Article 32 empowers the Supreme Court to issue writs for the enforcement of fundamental rights. Article 226 gives similar powers to High Courts. Article 131 to 136 deal with the jurisdiction of the Supreme Court, while Articles 227 and 228 give supervisory powers to High Courts over lower courts. Article 245 and 246 define the powers of Parliament and State legislatures, and judicial review ensures that these powers are exercised within their limits.
These provisions show that the Constitution expects the judiciary to act as the protector of fundamental rights and as the interpreter of the Constitution. The Supreme Court has often stated that judicial review is part of the basic structure of the Constitution and therefore cannot be taken away even by an amendment.
Objectives and Importance of Judicial Review
Judicial review has several important objectives. First, it ensures the supremacy of the Constitution, meaning that the Constitution remains the highest law and all authorities act according to it. Second, it protects fundamental rights of citizens by striking down laws or actions that infringe those rights. Third, it maintains separation of powers among the legislature, executive, and judiciary. Fourth, it provides a check against arbitrariness and abuse of power. Fifth, it preserves the federal structure by ensuring that the Centre and the States act within their respective spheres.
In a democratic society, these objectives are crucial. Without judicial review, the legislature could pass unjust laws and the executive could act without accountability. Judicial review thus keeps the government limited and accountable, creating a healthy balance between authority and liberty.
Scope of Judicial Review in India
The scope of judicial review in India is very wide. It covers three main areas—legislative, executive, and sometimes judicial actions.
Legislative Actions: The courts can review any law passed by Parliament or State legislatures to ensure that it does not violate the Constitution. If a law goes beyond the powers given to the legislature or violates fundamental rights, it can be declared unconstitutional.
Executive Actions: The courts also have the power to examine orders, notifications, or policies made by the government. If such actions are arbitrary, violate constitutional provisions, or exceed the authority of the executive, the courts can strike them down.
Judicial Decisions: In rare cases, even decisions of lower courts can be reviewed through writs like certiorari if there is an error of jurisdiction or violation of principles of natural justice.
The power of judicial review is not unlimited. Courts do not interfere in matters of policy or political wisdom unless there is clear violation of the Constitution or fundamental rights.
Types of Judicial Review
Judicial review in India can be understood in three broad forms. The first is review of legislative action, where the judiciary examines the constitutional validity of laws passed by Parliament or State legislatures. The second is review of administrative or executive action, where the courts check whether government orders and administrative decisions follow constitutional and legal requirements. The third is review of judicial decisions, which is narrower and usually involves correcting jurisdictional errors or ensuring that fundamental rights are not violated.
These types together form a comprehensive mechanism to ensure that no arm of the state crosses its legal and constitutional limits.
Judicial Review and Fundamental Rights
One of the strongest foundations of judicial review in India is the protection of fundamental rights guaranteed under Part III of the Constitution. Article 13 clearly declares that any law which takes away or abridges the fundamental rights shall be void. Article 32 gives every citizen the right to directly approach the Supreme Court for enforcement of these rights, and Article 226 gives similar powers to High Courts.
Because of these provisions, courts can strike down any law or action that violates rights such as equality before law, freedom of speech, right to life and personal liberty, freedom of religion, or cultural and educational rights. Many landmark judgments—like Kesavananda Bharati, Maneka Gandhi, and Kesavananda’s expansion of Article 21—have emerged from this power.
Judicial Review and the Basic Structure Doctrine
One of the most important developments in Indian constitutional law is the basic structure doctrine. In the early years, Parliament amended the Constitution to curtail certain fundamental rights, and the question arose whether the power to amend the Constitution was unlimited.
In the Kesavananda Bharati case (1973), a thirteen-judge bench of the Supreme Court ruled that while Parliament can amend any part of the Constitution, it cannot alter its basic structure. Elements like the supremacy of the Constitution, secularism, democracy, federalism, separation of powers, and judicial review itself are part of this basic structure. This means that even constitutional amendments can be struck down if they destroy these core principles. Judicial review thus extends even to constitutional amendments, making India’s system unique and robust.
Landmark Cases Shaping Judicial Review
Over the decades, several Supreme Court judgments have shaped and strengthened the concept of judicial review in India. The Kesavananda Bharati case established the basic structure doctrine and confirmed that judicial review is part of it. The Indira Gandhi v. Raj Narain case (1975) struck down a constitutional amendment that attempted to bar courts from questioning the election of the Prime Minister, holding it violated democracy, a basic feature. In Minerva Mills v. Union of India (1980), the court reaffirmed that Parliament’s power to amend the Constitution is limited and that judicial review cannot be removed.
Other notable cases include A.K. Gopalan v. State of Madras (1950), which dealt with personal liberty; Maneka Gandhi v. Union of India (1978), which expanded the scope of the right to life and liberty; and I.R. Coelho v. State of Tamil Nadu (2007), which held that even laws placed in the Ninth Schedule are subject to basic structure review. These decisions demonstrate the evolving nature of judicial review in safeguarding constitutional values.
Judicial Review and Separation of Powers
The Indian Constitution provides for separation of powers among the legislature, executive, and judiciary, but it is not a rigid separation. Each organ performs its functions while maintaining checks and balances. Judicial review plays a key role in this balance. By reviewing laws and actions of the legislature and executive, the judiciary ensures that they act within constitutional limits. At the same time, courts generally avoid interfering in matters of policy, recognising that policy-making is the domain of the elected branches.
This balance prevents concentration of power and protects democratic governance. It ensures that while the government remains effective, it also remains accountable and subject to the rule of law.
Limitations on Judicial Review
Although the scope of judicial review is wide, it is not unlimited. Courts cannot question the wisdom or necessity of legislation if it does not violate the Constitution. They avoid interfering in political questions or economic policy unless there is clear constitutional infringement. Judicial review is meant to examine the legality of an action, not its merits.
Moreover, the judiciary itself is bound by constitutional provisions and by the need to respect the roles of other organs. Excessive judicial activism can lead to tension between the judiciary and the legislature or executive. Therefore, courts exercise self-restraint and follow the principle of separation of powers while interpreting laws.
Judicial Activism and Judicial Overreach
In recent decades, India has seen growing judicial activism, where courts take a proactive role in protecting rights and directing government action, especially through Public Interest Litigations (PILs). This has helped in areas like environmental protection, human rights, and governance reforms. However, critics warn against judicial overreach, where courts are seen as stepping into policy-making or administrative functions.
The fine line between legitimate judicial review and overreach remains a subject of debate. Supporters argue that activism is necessary when other organs fail to act, while critics believe it may undermine democratic decision-making. The key is to maintain balance so that judicial review remains a safeguard without replacing elected authorities.
Judicial Review and Federalism
India is a federal country where powers are divided between the Centre and the States. Judicial review helps maintain this division. If Parliament passes a law on a subject reserved for States or vice versa, courts can strike it down. They also resolve disputes between different levels of government. This protects the federal structure and ensures smooth functioning of the Union and State governments.
By interpreting provisions related to distribution of powers, the judiciary ensures that neither level of government encroaches upon the other’s domain. This is vital for the unity and integrity of a diverse nation like India.
Judicial Review and Emergency Provisions
During a national emergency, certain fundamental rights can be suspended and the powers of the executive are greatly increased. Even in such times, judicial review acts as a safeguard. For instance, after the Emergency of 1975-77, the Supreme Court in cases like ADM Jabalpur v. Shivkant Shukla faced criticism for allowing excessive curtailment of rights. Later judgments have corrected that approach and strengthened the role of judicial review even during emergencies. Today, it is well established that the basic structure, including the right to life and judicial review, cannot be suspended even in an emergency.
Contemporary Relevance of Judicial Review
In present-day India, judicial review remains as significant as ever. Rapid economic development, technological changes, and complex governance issues often test constitutional boundaries. Judicial review ensures that new laws on data privacy, environmental protection, social welfare, or national security comply with fundamental rights and constitutional principles.
It also acts as a shield for the marginalized and voiceless, allowing public interest litigations on issues such as pollution, rights of migrant workers, and protection of forests and rivers. In an era of strong political majorities, judicial review ensures that constitutional values remain supreme and that individual freedoms are not sacrificed.
Challenges Before Judicial Review
Despite its importance, judicial review faces several challenges. One is the growing workload of courts, leading to delays in deciding constitutional cases. Another is conflict with the legislature and executive, when judicial rulings are perceived as interference in governance. There are also issues of access, as ordinary citizens may find it difficult to approach higher courts due to cost and complexity.
Moreover, questions about the accountability of judges sometimes arise, as the process of judicial appointments and internal administration remains largely within the judiciary. Balancing independence with transparency is an ongoing challenge.
Suggestions for Strengthening Judicial Review
To make judicial review more effective, several steps can be considered. The judiciary should continue to exercise self-restraint, intervening only when constitutional limits are clearly breached. At the same time, the government should respect judicial independence and promptly implement court decisions. Faster case disposal, increased use of technology, and better legal aid can make constitutional remedies more accessible. Public awareness about constitutional rights is equally important so that more people can approach courts when their rights are violated.
By strengthening these areas, judicial review can continue to protect democracy and the rule of law in the face of future challenges.
Conclusion
Judicial review is the cornerstone of constitutional democracy in India. It gives the Supreme Court and High Courts the power to examine laws, executive actions, and even constitutional amendments to ensure that they conform to the Constitution. This power protects fundamental rights, maintains the supremacy of the Constitution, ensures separation of powers, and preserves federal balance.
From the early days of independence to the latest judgments, judicial review has grown through landmark cases such as Kesavananda Bharati, Minerva Mills, and I.R. Coelho. It has corrected excesses of the legislature and executive, safeguarded freedoms, and adapted to new social and technological realities. At the same time, it works best when courts respect their constitutional limits and when the other organs respect the independence of the judiciary.
As India continues to evolve, judicial review will remain a vital instrument to keep governance within the framework of law and to ensure that democracy is not just about majority rule but also about protecting the rights and dignity of every citizen. It is, and will continue to be, the ultimate guardian of the Indian Constitution.
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