Introduction: The Pillar of Indian Democracy
Judicial Review is the inherent power of the judiciary to examine the constitutionality of legislative enactments and executive orders. It is the bedrock upon which the edifice of constitutional supremacy, federalism, and fundamental rights protection rests in India.
While not explicitly mentioned in the Constitution, this power is implicitly derived from various articles and has been emphatically affirmed and expanded by the Supreme Court, notably through the Basic Structure Doctrine. It serves as a vital mechanism of checks and balances, ensuring that all organs of the state act within the boundaries prescribed by the Constitution and preventing any arbitrary exercise of power.
(Source: M. Laxmikanth - Indian Polity, D.D. Basu - Introduction to the Constitution of India, Constitution of India, Landmark Supreme Court judgments)
16.7.1: Meaning of Judicial Review
Power of Judiciary
The ability of the Supreme Court and High Courts to examine legislative enactments and executive orders. This examination determines whether these actions conform to the provisions of the Constitution.
Outcome: Null and Void
If a law or executive order is found to be unconstitutional (or *ultra vires* - beyond its legal power), it is declared null and void, rendering it unenforceable and without legal effect.
Purpose 1: Constitutional Supremacy
To ensure the supremacy of the Constitution by checking whether legislative and executive actions conform to its provisions.
Purpose 2: Safeguarding Rights
To safeguard the rights of the citizens by protecting Fundamental Rights from legislative or executive encroachment.
(Source: M. Laxmikanth - Indian Polity)
16.7.2: Constitutional Provisions (Implicit)
The power of judicial review is not expressly mentioned but is inferred and derived from several articles:
Declares that all laws inconsistent with or in derogation of Fundamental Rights shall be void. This is the foundation for judicial review of laws infringing FRs.
Guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights. SC's power to issue writs for FR enforcement.
Confer original and appellate jurisdiction on the Supreme Court, enabling it to interpret the Constitution and adjudicate disputes.
Advisory jurisdiction, where the Supreme Court offers opinions on legal questions, implicitly involving constitutional interpretation.
Art 226: Empowers High Courts to issue writs for FR enforcement and any other legal right. Art 227: Grants High Courts supervisory jurisdiction over subordinate courts and tribunals.
Art 245 & 246: Distribution of legislative powers between Union and States (Seventh Schedule). Courts check legislative competence. Art 251 & 254: Doctrine of repugnancy (conflict between Union and State laws on Concurrent List) where Central law prevails; courts decide such conflicts.
Provides for the continuance in force of existing laws, subject to judicial review to ensure consistency with the Constitution.
(Source: Constitution of India Articles 13, 32, 131-136, 143, 226, 227, 245, 246, 251, 254, 372; M. Laxmikanth - Indian Polity)
16.7.3: Scope: India vs. USA & Maneka Gandhi
India's Approach: "Procedure Established by Law"
Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
- Traditional View: Limited judicial scrutiny to checking if a law was duly enacted and if the prescribed procedure was followed.
- Narrower Scope: Courts couldn't challenge the reasonableness or fairness of the procedure itself, only its existence.
(A.K. Gopalan v. State of Madras, 1950)
USA's Approach: "Due Process of Law"
American Constitution: "due process of law".
- Wider Scope: Courts examine both procedural fairness (was the procedure followed?) and substantive fairness (is the law itself fair, just, and reasonable?).
- Substantive Due Process: Allows courts to strike down laws even if properly enacted, if they deem the law's content arbitrary or unreasonable.
Impact of Maneka Gandhi v. Union of India (1978)
This landmark Supreme Court judgment significantly expanded the scope of Article 21 and, consequently, judicial review in India.
- The Court held that the "procedure established by law" in Article 21 must be fair, just, and reasonable, and not arbitrary or oppressive.
- This interpretation infused an element of "procedural due process" into Indian constitutional jurisprudence, moving India closer to the American 'due process' approach, particularly in matters of personal liberty.
- It empowered courts to scrutinize the fairness of the procedure itself, not just its existence.
(Source: Article 21 of the Indian Constitution; A.K. Gopalan v. State of Madras (1950); Maneka Gandhi v. Union of India (1978); M. Laxmikanth - Indian Polity)
16.7.4: Importance & Basic Structure Doctrine
Upholds Constitutional Supremacy
Ensures the Constitution is the supreme law, requiring all state actions to conform to its provisions.
Maintains Federal Equilibrium
Resolves Centre-State disputes (Art 131), ensuring legislative spheres are respected.
Protects Fundamental Rights
Acts as the guardian of citizens' Fundamental Rights (Art 32, 226), striking down violations.
Checks Arbitrary Power
Prevents executive and legislature from overstepping boundaries and exercising arbitrary power.
Judicial Review: Part of Basic Structure Doctrine
Judicial review itself has been declared an integral part of the Basic Structure of the Constitution by the Supreme Court, meaning it cannot be abrogated or diluted even by a constitutional amendment.
- Kesavananda Bharati v. State of Kerala (1973): First propounded the 'Basic Structure Doctrine'.
- Minerva Mills v. Union of India (1980): Affirmed judicial review as a 'basic feature' of the Constitution.
- L. Chandra Kumar v. Union of India (1997): Reaffirmed that the power of judicial review vested in the High Courts (Art 226) and the Supreme Court (Art 32) is an integral and essential feature of the basic structure. Also held that tribunals' decisions are subject to judicial review by High Courts.
(Source: Kesavananda Bharati v. State of Kerala (1973); Minerva Mills v. Union of India (1980); L. Chandra Kumar v. Union of India (1997); M. Laxmikanth - Indian Polity)
16.7.5: Limitations of Judicial Review
Presumption of Constitutionality
Courts assume laws are constitutional; burden of proof lies on the petitioner.
Locus Standi (Relaxed for PIL)
Traditionally, only aggrieved parties could approach; significantly relaxed for Public Interest Litigation (PIL).
Political Questions
Courts generally avoid "political questions," though the scope of this limitation is shrinking due to judicial activism.
Judicial Restraint
Courts often refrain from intervening in matters best left to legislative or executive wisdom, absent clear violations.
Case-by-Case Basis
Review is exercised only when a specific issue is brought before the court, not a general review.
Constitutional Amendments (Exceptions)
- Article 31A: Saves laws providing for acquisition of estates from challenge on grounds of Articles 14 and 19.
- Article 31B (Ninth Schedule): Laws placed here were historically protected from judicial review. However, in I.R. Coelho v. State of Tamil Nadu (2007), the SC ruled that laws placed in the Ninth Schedule *after April 24, 1973* are subject to judicial review if they violate the basic structure.
- Article 31C: Protects laws giving effect to certain Directive Principles (Art 39(b) and 39(c)) from challenge on grounds of Articles 14, 19, or 31.
(Source: Articles 31A, 31B, 31C of the Indian Constitution; I.R. Coelho v. State of Tamil Nadu (2007); M. Laxmikanth - Indian Polity)
16.7.6: Judicial Review of Constitutional Amendments (Basic Structure Doctrine)
The power of Parliament to amend the Constitution (Article 368) has been a subject of intense judicial scrutiny, leading to the evolution of the Basic Structure Doctrine.
Shankari Prasad & Sajjan Singh Cases
Early view: Parliament's power to amend under Art 368 was absolute and extended to all parts, including Fundamental Rights.
Golaknath v. State of Punjab
SC reversed its stand, holding Parliament cannot amend Fundamental Rights, as they are transcendental and inalienable.
24th Constitutional Amendment Act
Parliament reacted, explicitly stating its power to amend any part of the Constitution, including FRs, and such amendment is not a 'law' under Art 13.
Kesavananda Bharati v. State of Kerala (Landmark)
Reconciled amending power with judicial review. Upheld 24th Amendment's validity, but propounded the 'Basic Structure Doctrine': Parliament's amending power does not extend to altering the 'basic structure' or 'essential features' of the Constitution.
Components of Basic Structure (Illustrative)
While not definitively defined, the Court has identified various elements over time:
(Source: Article 368 of the Indian Constitution; Landmark Cases; M. Laxmikanth - Indian Polity)
16.7.7: Judicial Review of Administrative Actions
Judicial review extends not only to legislative enactments but also to administrative actions and executive orders. Courts review public authorities to ensure they act within bounds of law and fairness.
Illegality
Decision-maker must understand and apply the law correctly. Actions beyond statutory powers are illegal.
Irrationality (Wednesbury)
Decision is so outrageous in defiance of logic that no sensible person could arrive at it.
Procedural Impropriety
Failure to observe rules of natural justice (e.g., hear the other side) or statutory procedures.
Proportionality
Action taken must be proportionate to the objective, not more restrictive than necessary.
(Source: M. Laxmikanth - Indian Polity; D.D. Basu - Introduction to the Constitution of India; Administrative Law jurisprudence)
Summary Table: Judicial Review
| Aspect | Description |
|---|---|
| Meaning | Power of SC & HCs to determine constitutionality of legislative enactments & executive orders. If unconstitutional, they are declared void. |
| Constitutional Basis | Implicit, derived from various Articles: Art 13, 32, 131-136, 143, 226, 227, 245/246, 251/254, 372. |
| Scope (India vs. USA) | India: "procedure established by law" (Art 21) - narrower. USA: "Due process of law" - wider. Maneka Gandhi (1978): Infused "reasonableness" into "procedure established by law," expanding India's scope. |
| Importance | Upholds constitutional supremacy, maintains federal equilibrium, protects Fundamental Rights, checks arbitrary power. Declared part of Basic Structure (Kesavananda, Minerva, L. Chandra Kumar). |
| Limitations | Presumption of constitutionality. Locus Standi (relaxed for PIL). Generally not applicable to political questions (scope shrinking). Constitutional exceptions: Art 31A, 31B (Ninth Schedule - subject to I.R. Coelho (2007) for post-1973 laws), 31C. Judicial restraint. |
| Review of Constitutional Amendments | Parliament's power to amend is not absolute. Kesavananda Bharati (1973): Propounded Basic Structure Doctrine – Parliament cannot alter fundamental features. Minerva Mills (1980): Affirmed Judicial Review as a basic feature. |
| Review of Administrative Actions | Grounds for review: Illegality, Irrationality (Wednesbury), Procedural Impropriety, Proportionality. |
Prelims-Ready Notes
Meaning & Basis
- Judiciary's power to check constitutionality of laws/orders.
- Implicit (Arts 13, 32, 131-136, 143, 226, 227, 245, 246, 251, 254, 372).
Scope
- India: "Procedure established by law" (Art 21).
- USA: "Due process of law" (wider).
- Maneka Gandhi (1978): Infused "reasonableness" into "procedure established by law."
Importance & Basic Structure
- Upholds constitutional supremacy, federalism, FR protection, checks arbitrary power.
- Basic Structure: Judicial Review is a Basic Feature (Kesavananda, Minerva, L. Chandra Kumar).
Limitations
- Presumption of constitutionality.
- Locus standi (relaxed by PIL). Political questions (scope shrinking).
- Ninth Schedule (Art 31B): Post-April 24, 1973 laws reviewable on basic structure grounds (I.R. Coelho).
Review of Amendments & Admin Actions
- Constitutional Amendments: Subject to Basic Structure Doctrine.
- Administrative Actions: Illegality, Irrationality, Procedural Impropriety, Proportionality.
Mains-Ready Analytical Notes
- Judicial Overreach vs. Judicial Activism: When does judicial review cross the line from interpreting law to legislating or policymaking?
- Judicial Accountability: How to ensure the accountability of the judiciary itself, especially when its decisions have widespread policy implications?
- Scope of "Political Questions": The fluid boundary between justiciable legal questions and non-justiciable political questions (e.g., review of President's Rule under Art 356 in S.R. Bommai case).
- Balancing Federalism and Unity: Judicial review's role in mediating Centre-State disputes and legislative overlaps.
- Evolution from Restraint to Activism: Post-Independence deference shifting to assertive judicial review post-emergency and with PIL.
- From Textual to Purposive Interpretation: Moving from strict textual interpretation to a value-oriented approach, particularly in human rights and environmental jurisprudence.
- Impact of Amendments: Legislative attempts to curb judicial review (e.g., 42nd Amendment) largely undone, reaffirming judiciary's role.
- Safeguarding Democracy: Prevents executive authoritarianism and legislative excesses.
- Protection of Minorities and Marginalized: Ensures rights are protected against majoritarian impulses.
- Economic Impact: Predictability and enforcement of laws are crucial for investor confidence.
- Environmental Governance: Enforces environmental laws and introduces new principles (Polluter Pays, Precautionary Principle).
- Social Justice: Through PILs, championed various social justice causes.
Integration of Value-added Points
Doctrine of Severability
If only a part of the law is unconstitutional, the court can sever that part if it does not affect the remaining, constitutional part.
Doctrine of Eclipse
If a law is inconsistent with FRs, it becomes inoperative (eclipsed) but not void ab initio. It can become operative again if the FRs are amended or the inconsistency is removed.
Current Affairs & Recent Examples
Electoral Bond Scheme Verdict (2024)
Key Action: SC struck down the scheme, a significant exercise of judicial review.
- Upholding: Transparency and right to information (Fundamental Rights).
- Impact: Reaffirmed judiciary's role as guardian of free and fair elections.
(Source: SC judgment, The Hindu, Live Law)
Abrogation of Article 370 (2023)
Key Action: SC upheld the abrogation but reviewed the process and implications.
- Demonstration: Illustrates nuanced application of judicial review in highly political and constitutional matters.
- Outcome: Largely affirmed legislative intent, but directed elections in J&K.
(Source: SC judgment, Live Law)
Demonetization Review (2023)
Key Action: SC upheld the demonetization decision (4:1 majority).
- Demonstration: Showcased judicial restraint despite questions about process and impact.
- Debate: Reignited discussions on judicial activism vs. self-restraint in economic policy.
(Source: SC judgment, Legal commentaries)
UPSC Previous Year Questions
Prelims MCQs
With reference to the Constitution of India, consider the following statements:
1. No High Court shall have the jurisdiction to declare any Central law to be constitutionally invalid.
2. An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.
Which of the statements given above is/are correct?
Answer: (d) Neither 1 nor 2
Explanation: Both statements are incorrect. High Courts can examine the constitutional validity of Central laws (post 42nd Amendment reversal). The Supreme Court can question constitutional amendments based on the Basic Structure doctrine. This directly tests the core of judicial review.
Consider the following statements:
1. The Supreme Court of India tenders advice to the President of India on matters of law or fact.
2. Only the Supreme Court of India has the power to declare any law as unconstitutional.
Which of the statements given above is/are correct?
Answer: (a) 1 only
Explanation: Statement 1 is correct (Advisory Jurisdiction, Art 143). Statement 2 is incorrect; High Courts (Art 226) also have the power of judicial review and can declare laws unconstitutional within their territorial jurisdiction.
Mains Questions
UPSC Mains 2021 (GS-II)
"Judicial activism is not new to India. Analyse the various facets of judicial activism and its implications in the Indian context."
Direction: Directly asks for an analysis of judicial activism (expanded judicial review). Discuss its positive (protection of rights, accountability) and negative (overreach, blurring lines) implications with examples.
UPSC Mains 2018 (GS-II)
"The Indian Constitution embodies the principle of 'separation of powers' but also provides for 'checks and balances' to ensure accountability." Discuss the various mechanisms through which the Supreme Court acts as a check on the powers of the Executive and the Legislature.
Direction: Directly asks about judicial review as a primary mechanism of checks and balances. Discuss its role in upholding constitutional supremacy, protecting FRs, and maintaining federal balance.
Original MCQs for Prelims
With reference to the scope of Judicial Review in India, consider the following statements:
1. The phrase "due process of law" is explicitly mentioned in Article 21 of the Indian Constitution, providing the basis for judicial review.
2. The Supreme Court, in the Maneka Gandhi v. Union of India (1978) case, interpreted "procedure established by law" to include fairness and reasonableness.
3. Laws placed in the Ninth Schedule are entirely immune from judicial review if they are inconsistent with Fundamental Rights.
Which of the statements given above is/are correct?
(a) 1 and 2 only (b) 2 only (c) 1 and 3 only (d) 1, 2 and 3
Answer: (b)
Explanation: Statement 1 is incorrect (Art 21 uses "procedure established by law"). Statement 2 is correct (Maneka Gandhi expanded Art 21). Statement 3 is incorrect (I.R. Coelho case 2007 ruled post-1973 Ninth Schedule laws are reviewable on basic structure grounds).
Which of the following is NOT generally considered a ground for judicial review of administrative actions in India?
(a) Illegality (b) Irrationality (Wednesbury unreasonableness) (c) Procedural impropriety (d) Political expediency
Answer: (d)
Explanation: Illegality, Irrationality, and Procedural Impropriety are well-established grounds. Political expediency is a policy matter for the executive/legislature, generally outside judicial review's scope.
Original Descriptive Questions for Mains
Judicial Overreach vs. Constitutional Upholding
"Judicial Review in India is an indispensable tool for constitutional governance, yet its expansive application often invites criticism of judicial overreach. Discuss the evolving contours of judicial review, balancing its role in upholding the Constitution with concerns about judicial activism."
Impact of Basic Structure Doctrine
"Critically analyze the impact of the Basic Structure Doctrine on the power of judicial review in India. How has this doctrine shaped the relationship between the Parliament and the Supreme Court in the context of constitutional amendments and the protection of Fundamental Rights?"