Author: Debdeep Giri, Xavier Law School, St. Xavier’s University, Kolkata
To the Point
Judicial Review stands as the bedrock of constitutional governance in India. As the mechanism by which courts assess the constitutionality of legislative and executive actions, judicial review acts as a shield protecting fundamental rights and upholding the rule of law. Embedded in the doctrine of separation of powers, this principle ensures that no organ of the State transcends its constitutional limits. This article navigates the historical origins, doctrinal evolution, judicial interpretation, and limitations of Judicial Review in India, critically analysing its transformative role and contemporary challenges.
Abstract
The doctrine of judicial review is central to constitutional jurisprudence and democratic governance. It empowers the judiciary to determine the constitutionality of legislative and executive actions, thereby maintaining the supremacy of the Constitution. Originating in the United States with Marbury v. Madison (1803), the concept was adopted and evolved within the Indian legal framework, albeit with distinctive features. This article explores the constitutional basis, judicial evolution, and practical application of judicial review in India. It examines landmark judgments such as Kesavananda Bharati and Minerva Mills Ltd., which firmly established judicial review as an essential component of the basic structure doctrine. Furthermore, the article discusses the scope, limitations, and criticisms of judicial review, including debates on judicial activism and overreach. By engaging with case law and comparative perspectives, this article aims to provide a comprehensive understanding of judicial review as a dynamic tool for upholding constitutionalism and protecting civil liberties.
Use of Legal Jargon
The Indian judiciary derives the power of judicial review from various articles of the Constitution. It is a manifestation of the principle of constitutional supremacy, where any ultra vires act—be it legislative or executive—is rendered void ab initio. The doctrine aligns with audi alteram partem and the rule of law, making the judiciary the final interpreter of constitutional validity. Concepts like writ jurisdiction, basic structure, manifest arbitrariness, and procedural due process have developed through judicial review. While it ensures checks and balances, questions of judicial overreach and separation of powers continue to provoke debate. The review powers vested in the High Courts and Supreme Court, particularly under Articles 226 and 32 respectively, grant a wide ambit for safeguarding fundamental rights and ensuring accountability.
The Proof
Although the term “Judicial Review” is not explicitly mentioned in the Indian Constitution, its foundational principles are deeply embedded within the constitutional text. The foremost provision is Article 13(2), which clearly states that “the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” This provision grants the judiciary a clear constitutional authority to strike down any legislation that violates fundamental rights, thereby serving as the foundational basis of judicial review in India. It reflects the framers’ intent to place fundamental rights above ordinary legislation and subject all State action to constitutional scrutiny.
Further reinforcing the power of judicial review are Articles 32 and 226. Article 32, described by Dr. B.R. Ambedkar as the “heart and soul” of the Constitution, empowers the Supreme Court to issue writs for the enforcement of fundamental rights. This remedy is not merely supervisory but forms a substantive right that enables any citizen to directly approach the highest court for constitutional redress. Article 226 provides parallel authority to High Courts, with an even broader scope—allowing them to issue writs not only for the enforcement of fundamental rights but also for “any other purpose.” Additionally, Articles 131 and 133–136 vest the higher judiciary with original and appellate jurisdiction, reinforcing the judiciary’s position as the ultimate arbiter of constitutional validity.
Judicial review in India can be broadly classified into three distinct categories. First, review of legislative actions entails examining whether laws, statutes, or ordinances enacted by legislatures conform to constitutional provisions. If any such law is found to be violative of fundamental rights or ultra vires the Constitution, it is declared void and unenforceable. Second, review of administrative actions involves judicial scrutiny of decisions taken by executive authorities. Courts assess whether these actions are arbitrary, made with mala fide intent, or violate the principles of natural justice. This ensures that executive discretion remains bounded by legality, reasonableness, and fairness. Third, review of constitutional amendments pertains to evaluating whether constitutional changes made by Parliament infringe upon the basic structure of the Constitution. Although Article 368 empowers Parliament to amend the Constitution, the judiciary—especially post the Kesavananda Bharati decision—has asserted that such amendments must not alter or destroy its fundamental framework.
Over the decades, judicial review in India has evolved from a limited procedural check into a robust substantive safeguard. Initially, the judiciary exercised considerable restraint, avoiding interference in legislative and executive domains unless a clear constitutional violation was evident. However, through a process of judicial creativity and progressive interpretation, the courts expanded their oversight functions. The watershed moment came with the Supreme Court’s ruling in Kesavananda Bharati v. State of Kerala (1973), where the Court laid down the Basic Structure Doctrine. This doctrine held that while Parliament can amend any part of the Constitution, it cannot tamper with its essential features—such as secularism, federalism, separation of powers, and judicial review itself. This judgment marked a turning point, establishing judicial review not merely as a constitutional mechanism but as an inviolable principle.
Yet, the exercise of judicial review has not been without controversy. The line between judicial review and judicial activism remains blurred and often contested. Judicial review is a constitutionally sanctioned process, rooted in the judiciary’s duty to interpret and uphold the Constitution. In contrast, judicial activism refers to instances where the judiciary proactively engages with policy matters or fills legislative gaps, often stepping beyond conventional adjudicative functions. While such interventions have often promoted social justice and protected rights in the face of executive inaction, they have also drawn criticism for undermining the doctrine of separation of powers. The judiciary, in its zeal to protect constitutional values, must therefore strike a delicate balance—asserting its role as a constitutional guardian without encroaching upon the domains of the legislature and executive.
Case Laws
Golaknath v. State of Punjab (1967):
In this significant judgment, the Supreme Court declared that Parliament lacked the competence to modify the Fundamental Rights enshrined in Part III of the Constitution. Article 368 was interpreted as conferring only the procedural power to amend the Constitution, not the substantive power to alter Fundamental Rights. By placing these rights beyond the scope of legislative amendment, the judgment represented a bold affirmation of judicial review and underscored the judiciary’s role in protecting constitutional liberties from parliamentary infringement. Though later overturned by the 24th Constitutional Amendment, the decision set a key precedent in limiting Parliament’s amending powers.
Kesavananda Bharati v. State of Kerala (1973):
In this historic judgment, the Supreme Court formulated the Basic Structure Doctrine, holding that while Parliament could amend any provision of the Constitution, it could not alter its basic structure. Judicial review was explicitly recognized as part of this basic structure, thereby immunizing it from any legislative attempt to dilute or eliminate it. The verdict reinforced the supremacy of the Constitution and the judiciary’s power to review constitutional amendments, ensuring that core constitutional values remain intact despite parliamentary majorities.
Maneka Gandhi v. Union of India (1978):
This case significantly broadened the scope of Article 21, as the Court held that the right to personal liberty encompasses the right to travel abroad, which can only be restricted through a procedure that upholds principles of justice, equity, and reasonableness. The judgment introduced substantive due process into Indian constitutional law and broadened the scope of judicial review over executive actions. It empowered courts to examine not just the legality but also the fairness of procedures affecting fundamental rights, reinforcing the judiciary’s role as a guardian against arbitrary State action.
Minerva Mills Ltd. v. Union of India (1980):
In this case, the Supreme Court reaffirmed and strengthened the Basic Structure Doctrine laid down in Kesavananda Bharati, with a specific emphasis on judicial review as an inviolable feature of the Constitution. The Court struck down clauses of the 42nd Amendment that attempted to limit the power of judicial review by excluding certain laws from scrutiny and prioritizing Directive Principles over Fundamental Rights. It held that judicial review is an essential mechanism for maintaining the balance between Fundamental Rights and Directive Principles, and any attempt to destroy this balance would violate the basic structure. The judgment firmly established that Parliament cannot use its amending power to curtail the judiciary’s role as the interpreter and guardian of the Constitution.
Vishaka v. State of Rajasthan (1997):
In the absence of specific legislation on sexual harassment at the workplace, the Supreme Court invoked its judicial review powers under Articles 32 and 141 to lay down the Vishaka Guidelines, treating international human rights norms as part of constitutional interpretation. The Court recognized workplace harassment as a violation of Articles 14, 15, and 21, thereby affirming its proactive role in enforcing fundamental rights. This case exemplifies judicial creativity and activism within the broader framework of judicial review, ensuring rights protection even in legislative gaps.
Conclusion
Judicial review plays a foundational role in upholding constitutional governance in India. By restraining legislative and executive excesses, judicial review ensures that no power becomes absolute. The evolution of doctrines such as basic structure, substantive due process, and proportionality underscores the judiciary’s role as a vigilant sentinel of the Constitution.
However, the balance must be carefully maintained. Judicial review should not transgress into the realm of policymaking or legislative prerogatives. Critics often caution against “judicial legislation,” where courts may, under the guise of interpretation, create new legal norms leading to Judicial Overreach. While judicial review is essential for accountability, it must operate within constitutional boundaries to maintain institutional harmony.
The future of judicial review lies in its calibrated exercise—assertive yet restrained, principled yet pragmatic. It must remain an instrument of constitutional morality and social justice, reflecting the dynamic aspirations of the people it serves.
FAQs
1. What is judicial review?
Judicial review is the power of courts to examine the constitutionality of legislative and executive actions. If any law or act is found to be unconstitutional, it can be declared void.
2. Which constitutional provisions form the basis of judicial review in India?
Although the Constitution does not expressly mention judicial review, its foundation is firmly rooted in Articles 13, 32, and 226. Significantly, Article 13(2) prohibits the State from enacting any law that violates or abridges Fundamental Rights.
3. Does judicial review constitute a part of the Constitution’s basic structure?
Yes. As held in Kesavananda Bharati and reaffirmed in Minerva Mills, judicial review is an essential feature of the Constitution and part of its basic structure.
4. Can constitutional amendments be subject to judicial review?
Yes, especially post-Kesavananda Bharati. Constitutional amendments can be reviewed if they violate the basic structure of the Constitution.
5. What is the difference between judicial review and judicial activism?
Judicial review is the constitutionally sanctioned process of assessing the validity of laws and executive actions. Judicial activism refers to the proactive role played by the judiciary in addressing gaps left by the legislature or executive, sometimes creating new norms or rights.
6. Can the power of judicial review be curtailed by Parliament?
No. Judicial review is part of the basic structure of the Constitution and cannot be abrogated or curtailed, even by constitutional amendment, as affirmed in Minerva Mills.
7. Does judicial review apply only to fundamental rights violations?
No. While judicial review primarily protects fundamental rights, it also applies to administrative actions and the division of powers under the Constitution.
