Table of Contents
Introduction
Judicial review is a foundational principle of modern constitutional governance. It empowers courts—particularly the higher judiciary—to examine the legality and constitutionality of laws and government actions. In doing so, it ensures that all state actions remain within the boundaries set by the Constitution.
In India, judicial review holds immense significance. It not only upholds the supremacy of the Constitution but also serves as a vital check on legislative and executive powers. More importantly, it safeguards the fundamental rights of citizens and protects the democratic structure of the country.
What is Judicial Review?
At its core, judicial review refers to the power of the judiciary to invalidate laws or executive actions that are inconsistent with the Constitution. In India, this power lies mainly with the Supreme Court and High Courts, enabled by provisions such as Articles 13, 32, and 226. These allow the courts to strike down unconstitutional laws and protect individual liberties.
Why is it Important in India?
In a country like India, where the Constitution is supreme, judicial review plays a crucial role in maintaining constitutional balance. It prevents the misuse of power, protects individual freedoms, and helps resolve conflicts between different branches of government. Over time, the judiciary has addressed a range of issues—from civil liberties to electoral reforms—using its power of review, often shaping the very path of Indian democracy.
Historical Evolution of Judicial Review in India
Colonial Legacy: Seeds of Review in British India
Judicial review in India did not begin in 1950—it has roots in the British colonial legal system. British rule introduced core legal principles like the rule of law and judicial oversight, which gradually influenced Indian jurisprudence.
The Supreme Court of Judicature at Fort William, established in 1774, and later the High Courts under the Indian High Courts Act of 1861, marked the early stages of a formal judicial structure. These courts often reviewed legislative and executive actions, albeit within colonial constraints. Principles such as ultra vires (beyond one’s legal power) and procedural fairness began to take shape during this period, subtly laying the foundation for modern judicial review.
Constituent Assembly Debates: Shaping the Judiciary’s Role
Post-independence, the Constituent Assembly played a decisive role in giving judicial review a constitutional status. Leading figures like Dr. B.R. Ambedkar and Jawaharlal Nehru emphasized the need for an independent judiciary capable of acting as a check on legislative and executive overreach.
The debates reflected thoughtful disagreements—some members were cautious about granting excessive power to the judiciary, fearing judicial interference in democratic processes. Yet, there was widespread agreement on the need for a robust mechanism to uphold the Constitution and protect fundamental rights. This consensus led to the inclusion of judicial review in the final constitutional framework.
Constitutional Incorporation of Judicial Review
When the Constitution of India came into effect on January 26, 1950, it enshrined judicial review as a key feature. Important provisions such as:
Article 13: Declares any law inconsistent with fundamental rights as void.
Article 32: Empowers individuals to approach the Supreme Court for the enforcement of fundamental rights.
Article 226: Grants similar powers to High Courts.
These provisions not only institutionalized judicial review but also reinforced the idea that the Constitution reigns supreme over all other laws.
The Basic Structure Doctrine: A Landmark Development
One of the most powerful developments in Indian constitutional law came through the Kesavananda Bharati v. State of Kerala (1973) case. Here, the Supreme Court ruled that while Parliament can amend the Constitution, it cannot alter its basic structure. This doctrine empowered the judiciary to review even constitutional amendments—a unique feature not found in many other democracies.
By protecting the Constitution’s core values—like democracy, secularism, separation of powers, and the rule of law—the judiciary reinforced its role as the final guardian of constitutional integrity.
Theoretical Perspectives on Judicial Review
Understanding Judicial Review: A Constitutional Compass
Judicial review is the power of the judiciary to interpret the Constitution and strike down laws or government actions that conflict with it. At its heart, this process ensures that the Constitution remains the supreme law of the land—a guiding compass that all branches of government must follow.
When courts exercise judicial review, they’re not just checking for legal errors. They are determining whether a law or executive action violates constitutional principles—whether it goes beyond the powers granted by the Constitution or infringes upon fundamental rights. In doing so, the judiciary becomes the protector of constitutionalism, ensuring governance stays rooted in justice, fairness, and legality.
This scrutiny involves interpreting not just the Constitution’s text, but also considering legislative intent, historical context, and judicial precedents. By doing so, courts bridge the gap between constitutional ideals and real-world governance.
The Triangular Balance: Judiciary, Legislature, and Executive
India’s constitutional framework is based on a careful separation of powers. The legislature makes laws, the executive enforces them, and the judiciary interprets and reviews them. Judicial review acts as a constitutional safeguard in this system, ensuring that neither the legislature nor the executive oversteps its authority.
However, this balance is not always easy to maintain. The relationship among these three pillars of democracy is often dynamic, and at times, tense. Judicial review can be seen as an assertion of judicial power, but it must also remain within limits to avoid overreach. The judiciary must respect the domain of the legislature and executive, while the other branches must honor judicial independence and rulings.
In this context, judicial review serves not as a tool for interference, but as a mechanism of accountability—one that upholds the Constitution without compromising the functional independence of other branches.
Judiciary as the Guardian of Constitutional Supremacy
Perhaps the most vital role of the judiciary in a democracy is to uphold constitutional supremacy. This means ensuring that every law passed and every action taken by the state is consistent with the Constitution’s letter and spirit.
In times of political or institutional instability—when democratic norms are at risk—the courts often act as the last line of defense. They protect the rights of minorities, resist arbitrary power, and promote transparency and accountability in public administration. By enforcing constitutional limits, the judiciary helps keep the government in check and preserves the trust of the people in the rule of law.
In short, the judiciary doesn’t merely interpret the Constitution—it preserves its soul. Through its power of judicial review, it acts as a vital counterbalance to power, ensuring that India remains a constitutional democracy where rights, justice, and liberty are not just ideals but lived realities.
Constitutional Provisions and Mechanisms for Judicial Review
Judicial review in India is not just a judicial innovation—it is firmly grounded in the Constitution. Several key provisions explicitly grant the judiciary the power to assess and invalidate laws or executive actions that contravene constitutional mandates. Alongside these provisions, the doctrines of separation of powers and the basic structure further strengthen and guide the scope of judicial review.
Key Constitutional Provisions
Article 13: This article is often seen as the constitutional bedrock of judicial review in India. It declares that any law that is inconsistent with or in derogation of the fundamental rights shall be void. It gives the judiciary the authority to strike down unconstitutional laws, thus reinforcing the supremacy of fundamental rights over ordinary legislation.
Article 32: Described by Dr. B.R. Ambedkar as the “heart and soul of the Constitution,” Article 32 empowers individuals to directly approach the Supreme Court to seek remedies for violations of their fundamental rights. This not only strengthens judicial review but also makes the judiciary accessible for the protection of constitutional rights.
Article 226: This provision gives High Courts the power to issue writs for the enforcement of fundamental rights and for “any other purpose.” In practice, this has made High Courts powerful constitutional courts at the state level, enabling decentralized judicial review.
Article 136: This article allows the Supreme Court to grant special leave to appeal from any judgment, decree, or order in any cause or matter passed by any court or tribunal. Though not strictly a provision for judicial review, it expands the Supreme Court’s discretionary jurisdiction, often enabling constitutional scrutiny in exceptional cases.
Doctrine of Separation of Powers
The Indian Constitution does not rigidly separate powers like in the U.S. model, but it clearly demarcates roles for the legislature, executive, and judiciary. This division ensures that each branch operates within its domain, creating a system of checks and balances.
Judicial review is a critical aspect of this system. It allows the judiciary to ensure that neither the legislature nor the executive exceeds their constitutional authority. While this often creates friction, it also upholds the democratic structure and prevents authoritarian tendencies. However, courts are expected to exercise this power with restraint and respect for the constitutional roles of other institutions.
Doctrine of Basic Structure: A Landmark Safeguard
One of the most powerful judicial innovations in India is the Basic Structure Doctrine, propounded in the historic Kesavananda Bharati v. State of Kerala (1973) case. The Supreme Court held that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter or destroy its “basic structure.”
What constitutes the basic structure is not exhaustively defined but includes principles such as:
Supremacy of the Constitution
Rule of law
Separation of powers
Fundamental rights
Judicial review
Free and fair elections
Federalism
This doctrine serves as a constitutional safety valve, preventing elected majorities from undermining the core values of the Constitution. It gives the judiciary a firm ground to review even constitutional amendments—something few courts in the world are empowered to do.
Together, these constitutional provisions and doctrines create a robust framework for judicial review in India. They empower the judiciary to act as a constitutional sentinel, ensuring that the fundamental ethos of the Constitution remains intact amid changing political and social landscapes.
Judicial Activism vs. Judicial Restraint
Two Approaches to Judicial Power
Judicial activism and judicial restraint are two contrasting philosophies that shape how courts approach their constitutional role, especially in the context of judicial review.
Judicial Activism is when the judiciary takes a proactive role in addressing legal and social issues. Courts adopting this stance often interpret the Constitution expansively, stepping in to protect rights, correct injustices, or even influence public policy. This approach is usually guided by a commitment to social justice, equity, and individual freedoms, particularly when the legislature or executive fails to act.
Judicial Restraint, on the other hand, emphasizes caution. Courts that follow this philosophy tend to stick closely to the text of the Constitution and avoid interference in matters that are better left to elected representatives. This approach is rooted in respect for the separation of powers and the belief that democratic decisions should be made by those directly accountable to the people.
Both approaches reflect different interpretations of the judiciary's constitutional role—and both come with strengths and pitfalls.
Landmark Cases Illustrating the Two Approaches
Maneka Gandhi v. Union of India (1978)
This is a classic example of judicial activism. The Supreme Court interpreted Article 21 (Right to Life and Personal Liberty) broadly to include the right to travel abroad. The decision expanded the scope of personal liberty and established a powerful precedent for future rights-based interpretations. It demonstrated the Court’s willingness to take an activist stance to defend constitutional freedoms.
ADM Jabalpur v. Shivkant Shukla (1976)
Often criticized as a low point in Indian constitutional history, this case exemplifies judicial restraint—taken to the extreme. During the Emergency, the Supreme Court ruled that even the right to life could be suspended and was not enforceable through habeas corpus petitions. The decision showed excessive deference to the executive, and in hindsight, is seen as a failure to protect constitutional rights.
Critique and Evaluation
Judicial Activism has been praised for advancing civil liberties, protecting marginalized groups, and holding the state accountable. However, critics argue it can lead to judicial overreach, where unelected judges interfere with democratic decision-making. There are concerns that it allows courts to impose personal ideologies under the guise of interpretation.
Judicial Restraint promotes democratic stability, respects institutional boundaries, and upholds the doctrine of separation of powers. But excessive restraint can undermine justice, especially when courts fail to act against blatant violations of constitutional rights.
Striking the Right Balance
Neither approach is perfect. An ideal judicial philosophy involves balancing activism and restraint—stepping in when constitutional values are at stake, but refraining from overstepping into the domain of policy and politics. Judicial review is most effective when exercised with wisdom, clarity, and constitutional fidelity.
Scope and Limitations of Judicial Review
Reviewing the Actions of Legislature and Executive
In India, judicial review empowers courts to scrutinize the actions of both the legislature and the executive. This includes striking down:
Laws passed by Parliament or State Assemblies that violate the Constitution
Executive actions, policies, or regulations that exceed legal authority or breach fundamental rights
By doing so, the judiciary ensures that all government actions remain within constitutional boundaries and respect citizens’ rights.
Grounds for Judicial Review
Courts exercise judicial review on several well-established grounds:
Ultra Vires (Beyond Authority): Laws or actions that go beyond the powers granted by the Constitution or relevant legislation can be invalidated as ultra vires.
Procedural Impropriety: If due process is not followed—especially principles of natural justice or proper legislative procedure—the courts may intervene.
Violation of Fundamental Rights: The judiciary can strike down any law or action that infringes fundamental rights like equality, freedom of speech, or personal liberty.
Arbitrariness and Unreasonableness: Courts may quash decisions that are irrational, discriminatory, or arbitrary, especially when they adversely affect public interest or individual rights.
These grounds collectively ensure that the rule of law is upheld and that governance remains accountable and transparent.
The Doctrine of Judicial Self-Restraint
Despite its vast powers, the Indian judiciary often adheres to the doctrine of self-restraint. This principle advises courts to intervene only when necessary, particularly in matters of policy or political judgment.
Under this doctrine:
Courts respect the will of the people, as expressed through elected representatives.
They avoid interfering in areas where policy expertise or public consensus is more appropriate.
Judicial review is used sparingly and responsibly—to correct clear constitutional violations, not to override governance.
This balance prevents the judiciary from becoming an alternative power center, ensuring that judicial authority complements, rather than competes with, democratic institutions.
Through these boundaries and mechanisms, judicial review in India serves as both a shield and a sword—shielding citizens from unconstitutional excesses and wielding authority to correct them when necessary. It is this careful calibration of power that sustains the integrity, independence, and credibility of the judiciary in a vibrant democracy.
Indian Case Laws on Judicial Review
India’s legal landscape is dotted with landmark judgments that have defined and refined the scope of judicial review. These cases not only demonstrate how the courts have interpreted the Constitution but also highlight their role in defending democracy, fundamental rights, and the rule of law.
Here are ten landmark cases that illustrate the evolution and impact of judicial review in India:
Golaknath v. State of Punjab (1967): The Supreme Court held that Parliament could not amend fundamental rights, marking a major assertion of judicial power. This ruling emphasized that fundamental rights were inviolable, strengthening the judiciary's position as the protector of civil liberties.
Kesavananda Bharati v. State of Kerala (1973): Perhaps the most consequential case in Indian constitutional history, this decision introduced the Basic Structure Doctrine—ruling that Parliament could amend the Constitution but not alter its essential features. This firmly established the judiciary's authority to review even constitutional amendments.
Indira Nehru Gandhi v. Raj Narain (1975): In this politically charged case, the Supreme Court set aside the Prime Minister’s election on grounds of electoral malpractice, reaffirming that even the highest office is not above constitutional scrutiny.
Minerva Mills Ltd. v. Union of India (1980): This judgment struck down parts of the 42nd Amendment, reinforcing the limits of parliamentary power and reiterating the sanctity of the Constitution’s basic structure.
Mohd. Ahmed Khan v. Shah Bano Begum (1985): The Court ruled in favor of granting maintenance to a divorced Muslim woman, prioritizing constitutional values over personal law. It sparked national debate and underscored the judiciary’s evolving role in promoting gender justice.
Vishaka v. State of Rajasthan (1997): In the absence of specific legislation, the Supreme Court stepped in to frame guidelines for preventing sexual harassment at the workplace, demonstrating judicial activism in addressing urgent social concerns.
Maneka Gandhi v. Union of India (1978): This case expanded the scope of Article 21 to include the right to travel abroad and emphasized the requirement of fairness and reasonableness in state action—broadening the horizons of personal liberty.
Roe v. Wade (1973) (U.S. Supreme Court): Though not an Indian case, Roe v. Wade is a globally referenced decision on judicial review and personal liberty. It recognized a woman’s right to abortion under the U.S. Constitution and highlights how judicial review globally upholds individual freedoms.
S.R. Bommai v. Union of India (1994): This landmark decision limited the misuse of Article 356 (President’s Rule) and reinforced the importance of federalism and democratic governance in India.
Shayara Bano v. Union of India (2017): The Court declared instant triple talaq unconstitutional, reaffirming its stance on gender equality and protecting Muslim women from arbitrary practices.
Impact on Constitutional Interpretation and Governance
These judgments reflect how the judiciary has continuously shaped India’s constitutional narrative. Whether it’s expanding the ambit of rights, checking legislative overreach, or stepping in where legislative silence persists, the courts have played a pivotal role in:
Clarifying constitutional principles
Reinforcing accountability and transparency
Protecting minority rights and vulnerable groups
Preventing authoritarianism and executive excess
In essence, judicial review has evolved as a powerful tool not just for legal interpretation but also for safeguarding democracy and justice in India’s constitutional journey.
Challenges and Controversies Surrounding Judicial Review
Concerns of Judicial Overreach
A persistent concern is judicial overreach, where courts are accused of venturing into the domains of policy-making and administration—areas traditionally reserved for the legislature and executive.
In the Kesavananda Bharati case, although the doctrine of basic structure was lauded, critics viewed it as the judiciary assuming too much power by limiting Parliament's ability to amend the Constitution.
Similarly, in Vishaka v. State of Rajasthan, while the Court's guidelines were groundbreaking, some questioned whether the judiciary had overstepped its role by framing quasi-legislation instead of leaving the matter to Parliament.
Such instances fuel arguments that judicial activism, if unchecked, can blur the lines of separation of powers and undermine democratic institutions.
Backlash from the Other Branches
Judicial review often provokes strong reactions from the legislature and executive, especially when court decisions invalidate laws or policies.
The ruling in Minerva Mills led to considerable tension, as it directly challenged the sweeping constitutional changes introduced during the Emergency.
In some cases, political establishments have responded to court judgments by amending laws, sometimes seeking to sidestep or dilute judicial directives.
This pushback illustrates the fragile equilibrium between the branches of government and the delicate nature of judicial review in a democracy.
Public Perception and Judicial Legitimacy
Ultimately, the legitimacy of judicial review rests on public trust in the judiciary’s fairness, independence, and constitutional commitment.
Controversial decisions can shake this confidence. For example: In ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld preventive detention during the Emergency, even suspending the right to life. The decision is now widely condemned as a betrayal of civil liberties and a dark moment in judicial history.
Moreover, issues like judicial delays, opaque appointment processes, and occasional allegations of bias or corruption further complicate public perception.
The Path Forward: Balancing Power and Prudence
While judicial review remains a cornerstone of constitutional governance, its exercise must be guided by balance, prudence, and accountability. Courts must remain vigilant defenders of the Constitution—but also mindful of democratic mandates and institutional boundaries.
To maintain its credibility and relevance, the judiciary must:
Embrace transparency in its own functioning
Exercise self-restraint when appropriate
Reinforce public trust through consistent constitutional adherence
Comparative Analysis: Judicial Review in Other Jurisdictions
Contrasting Approaches to Judicial Review
Judicial review, though widely accepted as a pillar of constitutional governance, takes different forms in various countries depending on their political systems, legal traditions, and constitutional frameworks.
United States: The U.S. established judicial review through the iconic case of Marbury v. Madison (1803), where the Supreme Court asserted its power to invalidate laws that conflict with the Constitution. Over time, U.S. courts have taken an assertive role in interpreting rights, influencing policy, and checking executive and legislative actions. The American system reflects a robust and proactive model of judicial review deeply embedded in its constitutional ethos.
United Kingdom: The UK follows the doctrine of parliamentary sovereignty, meaning Parliament is the supreme legal authority. Courts in the UK can review administrative decisions for legality but cannot strike down Acts of Parliament, even if they conflict with fundamental rights. Cases like Pickin v. British Railways Board (1974) confirm this limited role. However, under the Human Rights Act, courts can issue a "declaration of incompatibility" with the European Convention on Human Rights, leaving it to Parliament to decide whether to amend the law.
Other Countries: Nations such as Canada, Germany, and Australia have incorporated judicial review within written constitutions. In Germany, the Constitutional Court plays a highly active role in constitutional enforcement. Canada employs a balanced model, where courts may invalidate laws but Parliament can, in some cases, override judicial decisions (using the “notwithstanding clause”).
Lessons for the Indian Context
India's model of judicial review shares similarities with both the U.S. (in terms of constitutional supremacy) and parliamentary democracies like the UK. The Indian judiciary has carved out a strong role for itself, especially in protecting fundamental rights and interpreting the basic structure of the Constitution.
Comparative analysis offers India two important lessons:
Balance is key: As in the UK, judicial restraint and deference to legislative wisdom are essential to preserve democratic accountability.
Protecting constitutional values: Like in the U.S. and Germany, strong judicial oversight is necessary to guard against executive overreach and to enforce rights effectively.
Ultimately, studying other systems helps Indian scholars, jurists, and lawmakers reflect on ways to improve judicial independence, refine institutional design, and ensure that the judiciary remains a credible guardian of the Constitution.
Judicial Review and Social Justice
Protecting Minority Rights and Advancing Equity
Judicial review is not just a legal mechanism—it is a social justice instrument. In a country as diverse and stratified as India, it plays a vital role in protecting the marginalized, correcting systemic inequalities, and empowering vulnerable groups.
One of the most transformative cases in this regard is National Legal Services Authority (NALSA) v. Union of India (2014), where the Supreme Court recognized the rights of transgender persons as a "third gender" and directed the government to ensure their social, legal, and economic inclusion.
Uplifting the Marginalized: A Track Record
Navtej Singh Johar v. Union of India (2018): The decriminalization of consensual same-sex relationships under Section 377 IPC was a monumental victory for the LGBTQ+ community and a clear affirmation of dignity and equality.
Indra Sawhney v. Union of India (1992): This judgment upheld reservations for Other Backward Classes (OBCs) in public employment, reinforcing the state's commitment to social and educational advancement of backward sections.
Through these and other judgments, the Indian judiciary has repeatedly demonstrated that judicial review can be a vehicle for transformative constitutionalism, reshaping laws and policies to reflect values of justice, dignity, and inclusion.
Future Prospects and Recommendations
Improving the Efficiency of Judicial Review
Despite its successes, judicial review in India faces challenges of delay, inconsistency, and accessibility. Reforms are needed to ensure that this tool remains effective and timely:
Timely Disposal of Cases: Expediting constitutional and public interest litigation through dedicated constitutional benches or fast-track mechanisms is crucial.
Modernization & Capacity Building: Investment in judicial infrastructure—digital courts, well-trained staff, and continuous judicial education—can significantly reduce backlog and improve delivery.
Transparency and Accountability: Institutional reforms such as transparent judicial appointments, clearer case allocation protocols, and annual judicial performance reviews can enhance public trust.
Strengthening Checks and Balances
A vibrant democracy requires all three branches—legislature, executive, and judiciary—to function independently but cohesively.
Preserving Judicial Independence: Ensure appointments are merit-based and free from political interference. Adequate funding and insulation from external pressure are also critical.
Executive Accountability: The courts must continue to scrutinize executive actions that impinge on civil liberties or exceed constitutional authority.
Robust Legislative Oversight: Parliament must actively debate, review, and improve legislation before enactment, preventing unnecessary judicial interventions.
Balancing Judicial Activism with Democratic Mandates
While judicial activism has often stepped in to fill legislative or executive voids, unchecked activism can blur institutional boundaries.
Recommendations include:
Measured Restraint: Courts should avoid entering policy-making domains unless there is a clear constitutional violation.
Clear Reasoning: Judgments should be grounded in detailed legal analysis and constitutional principles, fostering both transparency and precedent.
Institutional Dialogue: Promote structured engagement between branches—through joint committees, expert consultations, or amicus briefs—to better align legal interpretations with democratic governance.
Conclusion
Judicial review is a cornerstone of India’s constitutional framework, ensuring that all laws and actions conform to constitutional principles. It has protected fundamental rights, acted as a check on executive and legislative excesses, and played a pivotal role in promoting social justice.
Yet, as India's democracy evolves, so must the mechanisms that safeguard it. Reforms to enhance judicial efficiency, foster inter-branch accountability, and encourage institutional restraint will be crucial to sustaining the legitimacy and effectiveness of judicial review.
By learning from global practices, engaging in public discourse, and staying committed to constitutional values, India can continue to nurture a judicial system that not only upholds the law but also advances justice, equality, and human dignity for all.