Judicial Review in India
A comprehensive self-learning guide to the meaning, constitutional foundation, scope, limitations, landmark judgments, basic structure doctrine, Ninth Schedule and democratic significance of judicial review in India.
Concepts • Constitutional Articles • Knowledge Checks • Case Studies • Prelims MCQs • Mains Practice
What Is Judicial Review?
Judicial review is the power of constitutional courts to examine whether laws, constitutional amendments and executive actions conform to the Constitution.
When a measure violates the Constitution, the court may declare it unconstitutional, invalid or unenforceable, wholly or partly.
A Simple Example
Suppose a state legislature passes a law prohibiting all peaceful criticism of the government.
A citizen challenges the law because it restricts freedom of speech under Article 19(1)(a).
The court examines whether the restriction is constitutionally permissible under Article 19(2). If it fails the constitutional test, the court may strike it down.
Knowledge Check 1. Judicial review primarily involves:
Origin and Evolution
United States: Marbury v. Madison (1803)
The classic modern exposition of judicial review is associated with Marbury v. Madison (1803), decided by the United States Supreme Court under Chief Justice John Marshall.
The judgment established that courts could refuse to give effect to legislation inconsistent with the US Constitution.
Judicial Review in India
India’s Constitution expressly provides several powers and remedies through which judicial review operates.
The Supreme Court and High Courts exercise judicial review as part of their constitutional responsibilities.
Knowledge Check 2. Which American case is famously associated with the doctrine of judicial review?
Constitutional Basis of Judicial Review
The Constitution does not place all judicial review powers under one Article. They arise from several constitutional provisions read together.
| Article | Constitutional Significance |
|---|---|
| 13 | Laws inconsistent with Fundamental Rights are void to the extent of inconsistency. |
| 32 | Right to constitutional remedies before the Supreme Court for Fundamental Rights. |
| 131 | Original jurisdiction of Supreme Court in specified federal disputes. |
| 132–134 | Appellate jurisdiction in constitutional, civil and criminal matters. |
| 136 | Special leave to appeal, subject to constitutional conditions. |
| 137 | Supreme Court’s power to review its own judgments or orders. |
| 226 | High Court writ powers for Fundamental Rights and other purposes. |
| 227 | High Court superintendence over courts and tribunals. |
| 245–246 | Legislative competence and distribution of law-making powers. |
| 251 and 254 | Rules governing certain inconsistencies between Union and State laws. |
| 368 | Constitutional amendment power, subject to the basic structure doctrine. |
Article 13: A Fundamental Provision
Article 13(1) deals with pre-Constitution laws inconsistent with Fundamental Rights. Article 13(2) prohibits the State from making laws that take away or abridge Fundamental Rights.
Such laws are void to the extent of their inconsistency.
What About Constitutional Amendments?
Article 13(4), inserted by the Twenty-fourth Amendment, provides that Article 13 does not apply to amendments made under Article 368.
However, the Supreme Court may examine constitutional amendments for violation of the basic structure doctrine.
Knowledge Check 3. Which Article expressly addresses laws inconsistent with Fundamental Rights?
Knowledge Check 4. Article 137 concerns:
Three Major Categories of Judicial Review
Judicial review may be understood through three broad categories.
Review of Constitutional Amendments
Parliament can amend many constitutional provisions, including Fundamental Rights, but cannot damage or destroy the Constitution’s basic structure.
For example, an amendment attempting to abolish all judicial review would face a basic structure challenge.
Review of Legislation
Courts may examine whether a law:
- Violates Fundamental Rights.
- Exceeds legislative competence.
- Conflicts with another constitutional limitation.
- Fails an applicable constitutional test.
Review of Administrative Action
Administrative action may be challenged on grounds including illegality, jurisdictional error, procedural unfairness, arbitrariness and constitutional violations.
Knowledge Check 5. Which of the following
can fall within judicial review?
1. Constitutional amendments
2. Ordinary legislation
3. Administrative decisions
Grounds for Declaring a Law Unconstitutional
1. Violation of Fundamental Rights
A law may be invalid if it violates a Fundamental Right and cannot be justified under the applicable constitutional limitations.
2. Lack of Legislative Competence
The Constitution distributes legislative powers between Parliament and State Legislatures.
A legislature may act beyond its constitutionally assigned field. Such legislation can be challenged for lack of competence.
3. Violation of Other Constitutional Provisions
A law may violate mandatory constitutional requirements even when the dispute does not directly concern a Fundamental Right.
4. Basic Structure Violation
Constitutional amendments can be invalidated if they damage or destroy the basic structure of the Constitution.
Knowledge Check 6. A State Legislature passes a law beyond its constitutionally assigned legislative field. The principal issue is:
How Judicial Review Works
The following simplified sequence shows how a constitutional challenge may be examined.
Presumption of Constitutionality
Legislation ordinarily enjoys a presumption of constitutionality, although the applicable burden and intensity of review vary with the constitutional issue.
Severability
If an unconstitutional portion of a law can be separated from the valid portion, the valid part may survive.
Reading Down
Where legally permissible, courts may adopt a constitutionally consistent interpretation rather than invalidate a provision.
Doctrine of Eclipse
In its classic application, a pre-Constitution law inconsistent with Fundamental Rights becomes inoperative to the extent of the inconsistency, rather than necessarily disappearing for every purpose.
Knowledge Check 7. The doctrine of severability means:
Judicial Review and the Basic Structure Doctrine
Kesavananda Bharati v. State of Kerala (1973)
The Supreme Court held that Parliament has wide powers to amend the Constitution under Article 368 but cannot alter or destroy its basic structure.
The decision was delivered on 24 April 1973 by a 13-judge bench, with a 7–6 majority on the central limitation.
What Forms Part of the Basic Structure?
Minerva Mills v. Union of India (1980)
The Court invalidated provisions of the Forty-second Amendment that attempted to exclude judicial review of constitutional amendments and expand the amending power without meaningful limits.
The judgment also emphasised harmony between Fundamental Rights and Directive Principles.
Why Judicial Review Is a Basic Feature
Without meaningful judicial review, constitutional limitations could become unenforceable against the institutions they are meant to restrain.
Knowledge Check 8. Which case established the basic structure doctrine?
Knowledge Check 9. The basic structure doctrine principally limits:
Judicial Review of the Ninth Schedule
What Is the Ninth Schedule?
The Ninth Schedule was introduced by the First Constitutional Amendment Act, 1951, along with Article 31B.
It was initially designed to protect specified laws, particularly land reform legislation, from invalidation on grounds of infringement of Fundamental Rights.
Does Ninth Schedule Inclusion Give Absolute Immunity?
No. The protection is not unlimited, particularly for laws inserted after the Kesavananda Bharati judgment.
The I.R. Coelho Principle
Laws placed in the Ninth Schedule through constitutional amendments after 24 April 1973 are not automatically immune from judicial scrutiny.
Their impact on protected constitutional rights and principles can be examined to determine whether the basic structure has been damaged.
Knowledge Check 10. Which judgment reaffirmed judicial scrutiny of post-1973 Ninth Schedule insertions?
Knowledge Check 11. The crucial date associated with Ninth Schedule basic structure scrutiny is:
Judicial Review by the Supreme Court and High Courts
Supreme Court
The Supreme Court exercises judicial review through its original, appellate and other constitutional jurisdictions.
Article 32 guarantees the right to approach the Supreme Court for enforcement of Fundamental Rights.
High Courts
Article 226 empowers High Courts to issue writs for enforcement of Fundamental Rights and for other purposes.
Article 227 provides powers of superintendence over courts and tribunals within their jurisdiction, subject to constitutional exceptions.
| Feature | Supreme Court | High Courts |
|---|---|---|
| Principal writ provision | Article 32 | Article 226 |
| Rights enforceable through writs | Fundamental Rights | Fundamental Rights and other legal rights |
| Territorial dimension | National constitutional jurisdiction | Territorial and cause-of-action rules apply |
| Superintendence | No general Article 227 equivalent | Article 227 |
| Precedent | Law declared binds all courts under Article 141 | Binding on subordinate courts within the relevant jurisdiction |
L. Chandra Kumar v. Union of India (1997)
The Supreme Court held that judicial review under Articles 226 and 227 and Article 32 forms part of the basic structure of the Constitution.
Tribunals may perform important adjudicatory functions, but the constitutional judicial review jurisdiction of High Courts cannot be excluded merely by assigning disputes to tribunals.
Knowledge Check 12. Which Article gives High Courts wider writ powers in relation to the types of rights enforceable?
Judicial Review: India, USA and UK
| Feature | India | USA | UK |
|---|---|---|---|
| Constitutional model | Written Constitution with constitutional supremacy | Written Constitution with constitutional supremacy | Uncodified constitutional arrangements and parliamentary sovereignty |
| Judicial review | Constitutionally grounded | Classically developed through judicial interpretation | Primarily review of administrative legality and statutory compatibility |
| Ordinary primary legislation | Can be invalidated for constitutional violations | Can be invalidated for constitutional violations | Courts generally cannot strike down Acts of the UK Parliament merely for incompatibility with ordinary constitutional principles |
| Constitutional amendments | Basic structure limitation | Formal amendment process under Article V | No single equivalent codified amendment framework |
Procedure Established by Law and Due Process
The Indian Constitution uses the expression procedure established by law in Article 21.
Historically, this was contrasted with the American concept of due process of law.
However, after Maneka Gandhi v. Union of India (1978), the Supreme Court interpreted Article 21 to require a procedure that is fair, just and reasonable, read alongside Articles 14 and 19.
Knowledge Check 13. Which judgment significantly expanded the understanding of fairness under Article 21?
Judicial Review, Judicial Activism and Judicial Overreach
These concepts are connected but should not be treated as identical.
| Concept | Meaning | Example |
|---|---|---|
| Judicial Review | Examining state action against constitutional or legal standards | Invalidating a law that violates Article 14 |
| Judicial Activism | An assertive judicial approach to enforcing rights or developing remedies | Issuing rights-protective directions in an appropriate constitutional case |
| Judicial Restraint | Recognising institutional limits and respecting legitimate legislative and executive choices | Declining to substitute judicial policy preferences for a lawful policy decision |
| Judicial Overreach | A critical description of judicial intervention viewed as exceeding proper institutional limits | A court attempting to administer routine policy details without sufficient legal justification |
Public Interest Litigation
Public Interest Litigation, or PIL, has helped broaden access to constitutional justice, especially for vulnerable groups.
Courts have relaxed traditional standing requirements in appropriate public interest matters.
However, PIL should not be confused with judicial review itself. PIL is a procedural avenue through which constitutional and legal issues may be raised.
Arguments Supporting Judicial Activism
- Protection of marginalised groups.
- Response to failures of public authorities.
- Enforcement of constitutional rights.
- Development of effective legal remedies.
Concerns About Judicial Overreach
- Possible interference with policy choices.
- Limited institutional expertise in some areas.
- Questions of democratic accountability.
- Risk of blurring separation of powers.
Knowledge Check 14. Which statement best describes judicial activism?
Importance and Limitations of Judicial Review
Why Judicial Review Matters
Limitations and Challenges
- Courts ordinarily decide actual legal disputes rather than abstract policy preferences.
- Standing, jurisdiction and procedural requirements may affect access.
- Judicial delays and litigation costs may weaken effective remedies.
- Courts must respect constitutionally permissible policy choices.
- Judicial independence must coexist with institutional accountability.
Judicial Review and Separation of Powers
The legislature makes laws, the executive implements them and the judiciary interprets and applies the law.
These functions are not completely sealed off from one another. Judicial review enables the judiciary to ensure that legislative and executive action remains constitutionally valid.
Knowledge Check 15. Judicial review is particularly important for:
Landmark Judgments: Revision Timeline
| Year | Case | Importance |
|---|---|---|
| 1951 | Shankari Prasad | Early interpretation of Parliament’s power to amend Fundamental Rights. |
| 1965 | Sajjan Singh | Reaffirmed the earlier approach to constitutional amendment power. |
| 1967 | Golaknath | Restricted Parliament’s ability to amend Fundamental Rights under the then-prevailing interpretation. |
| 1973 | Kesavananda Bharati | Established the basic structure doctrine. |
| 1975 | Indira Nehru Gandhi v. Raj Narain | Applied basic structure principles to a constitutional amendment affecting election disputes. |
| 1978 | Maneka Gandhi | Expanded the interpretation of fair procedure and personal liberty. |
| 1980 | Minerva Mills | Reaffirmed limited amending power and constitutional balance. |
| 1981 | Waman Rao | Identified the 24 April 1973 dividing date for Ninth Schedule scrutiny. |
| 1994 | S.R. Bommai | Affirmed judicial review of proclamations under Article 356. |
| 1997 | L. Chandra Kumar | Protected constitutional judicial review by High Courts and the Supreme Court. |
| 2007 | I.R. Coelho | Confirmed basic structure scrutiny of post-1973 Ninth Schedule insertions. |
| 2015 | Fourth Judges Case / NJAC | Invalidated the Ninety-ninth Amendment and NJAC framework. |
| 2017 | K.S. Puttaswamy | Recognised privacy as a Fundamental Right. |
| 2018 | Navtej Singh Johar | Invalidated the application of Section 377 to consensual adult same-sex relations. |
Three Cases Every UPSC Aspirant Should Connect
Knowledge Check 16. Which judgment addressed judicial review of Article 356 proclamations?
10 Constitutional Case Studies
Apply the concepts before revealing the correct answer and explanation.
Case 1. Parliament passes an amendment purporting to eliminate all judicial review of constitutional amendments. Which doctrine is most relevant?
Case 2. A state law violates the equality guarantee under Article 14. Which provision directly concerns laws inconsistent with Fundamental Rights?
Case 3. A law is inserted into the Ninth Schedule by a constitutional amendment enacted in 2005. It is challenged for damaging the basic structure. Which case is most relevant?
Case 4. A state authority refuses to perform a mandatory statutory duty. Which constitutional remedy may be appropriate before a High Court?
Case 5. A legislature enacts a law outside its constitutionally allocated field of legislative power. The law is challenged primarily on:
Case 6. Only one separable provision of a statute is unconstitutional. The remaining provisions can operate independently. Which doctrine is relevant?
Case 7. A tribunal statute attempts to completely exclude High Court judicial review under Articles 226 and 227. Which case is especially relevant?
Case 8. A law restricts personal liberty through a procedure that is arbitrary and unfair. Which judgment is especially relevant?
Case 9. A citizen challenges a President’s Rule proclamation as constitutionally unjustified. Which judgment is especially relevant?
Case 10. A court declines to substitute its own economic policy preferences for a lawful government policy merely because another policy might be preferable. This illustrates:
Final Assessment — 25 MCQs
Select one answer per question. Immediate feedback and an explanation will appear after selection. All questions are original UPSC-style practice questions.
Q1. Judicial review means:
Q2. Marbury v. Madison was decided in:
Q3. Article 13 primarily concerns:
Q4. The basic structure doctrine was established in:
Q5. Which of the following is regarded as part of the basic structure?
Q6. Consider the following statements:
1. Judicial review can apply to legislation.
2. Judicial review can apply to executive action.
3. Constitutional amendments are entirely immune from judicial review.
Which statements are correct?
Q7. Article 32 concerns:
Q8. High Courts exercise writ jurisdiction under:
Q9. The Ninth Schedule was introduced by the:
Q10. Which Article is directly associated with the Ninth Schedule?
Q11. Which case is most directly associated with the 24 April 1973 dividing date for Ninth Schedule review?
Q12. I.R. Coelho was decided in:
Q13. The doctrine of severability concerns:
Q14. Which case reinforced limited amending power and judicial review in 1980?
Q15. L. Chandra Kumar is especially significant for:
Q16. Judicial review of an Article 356 proclamation is associated with:
Q17. Which case expanded the requirement of fair, just and reasonable procedure under Article 21?
Q18. Which of the following is a recognised ground for challenging ordinary legislation?
1. Violation of Fundamental Rights
2. Lack of legislative competence
3. Violation of another constitutional restriction
Q19. The Supreme Court’s power to review its own judgments is found in:
Q20. Which statement about Ninth Schedule laws is correct?
Q21. The principal distinction between Article 32 and Article 226 is:
Q22. Judicial activism is best described as:
Q23. Which statement about judicial review in India is correct?
Q24. Consider the following statements:
1. Judicial review supports constitutional supremacy.
2. Judicial review helps maintain federal balance.
3. Judicial review necessarily makes the judiciary superior to the Constitution.
Which statements are correct?
Q25. Consider the following statements:
1. Parliament’s power under Article 368 is unlimited.
2. Judicial review forms part of the basic structure.
3. Laws inserted into the Ninth Schedule after 24 April 1973 can be examined under the basic structure doctrine.
Which statements are correct?
Mains Answer-Writing Practice
Attempt each question before opening the model answer.
Question 1
Explain the meaning and constitutional significance of judicial review in India.
Show Model Answer
Judicial review is the power of constitutional courts to examine the validity of legislative and executive action against the Constitution.
Its constitutional foundation includes Articles 13, 32 and 226, together with other provisions governing constitutional jurisdiction.
Judicial review protects Fundamental Rights, enforces legislative competence and prevents unconstitutional exercises of public power.
It is also important for maintaining federal balance and the rule of law.
In Kesavananda Bharati (1973), the Supreme Court established the basic structure doctrine. Subsequent judgments recognised judicial review as an essential constitutional feature.
Thus, judicial review does not place courts above the Constitution. Rather, it enables courts to uphold constitutional supremacy.
Question 2
Discuss how the basic structure doctrine limits Parliament’s amending power. Examine the role of judicial review in preserving constitutional identity.
Show Model Answer
Article 368 empowers Parliament to amend the Constitution. However, this power is not unlimited.
In Kesavananda Bharati (1973), the Supreme Court held that Parliament may amend constitutional provisions but cannot damage or destroy the basic structure.
Basic structure features recognised through judicial decisions include constitutional supremacy, judicial review, judicial independence, democracy, federalism and the rule of law.
In Minerva Mills (1980), the Court reinforced the principle of limited amending power and the importance of constitutional balance.
Judicial review is central to this framework because it allows courts to assess whether constitutional amendments exceed permissible limits.
The doctrine prevents an elected majority from eliminating essential constitutional safeguards while allowing substantial constitutional change.
Critics raise concerns about judicial discretion in identifying basic structure features. Supporters emphasise the need to protect constitutional identity against destructive amendments.
Ultimately, the doctrine seeks to reconcile democratic amendment power with enduring constitutional limits.
Question 3
The Ninth Schedule does not provide absolute immunity from judicial review. Discuss with reference to important Supreme Court judgments.
Show Model Answer
The Ninth Schedule was introduced through the First Constitutional Amendment Act, 1951, along with Article 31B.
Its initial objective included protecting land reform legislation from challenges based on Fundamental Rights.
However, the basic structure doctrine established in Kesavananda Bharati (1973) limited Parliament’s constitutional amending power.
In Waman Rao (1981), the Supreme Court identified 24 April 1973 as the crucial dividing date for scrutiny of Ninth Schedule insertions.
In I.R. Coelho (2007), the Court reaffirmed that laws inserted after that date through constitutional amendments may be examined for basic structure violations.
The constitutional impact of the protected law, including its effect on essential rights and principles, is relevant to the inquiry.
Therefore, Ninth Schedule protection is significant but not absolute. Judicial review remains necessary to prevent constitutional amendments from defeating basic structure safeguards.
Question 4
Distinguish judicial review, judicial activism and judicial overreach.
Show Model Answer
Judicial review is the constitutional power to examine laws and executive action for legality and constitutionality.
Judicial activism refers to an assertive judicial approach, often involving expanded rights interpretation, PIL and effective constitutional remedies.
Judicial overreach is a critical description of judicial intervention considered to exceed proper institutional boundaries.
For example, invalidating an unconstitutional law is judicial review. Developing rights-protective remedies may reflect judicial activism. Assuming routine executive policy functions without adequate legal justification may invite criticism as judicial overreach.
The central challenge is to protect rights without undermining democratic accountability or the separation of powers.
Effective constitutional governance requires both judicial independence and principled institutional restraint.
Question 5
Judicial review is indispensable for constitutional democracy, but its exercise must respect institutional limitations. Critically examine.
Show Model Answer
Judicial review is an essential feature of constitutional democracy. It ensures that legislative and executive authorities act within constitutional limits.
Its importance lies in protecting Fundamental Rights, preserving federal balance, preventing arbitrary action and enforcing the rule of law.
The Supreme Court’s decisions in Kesavananda Bharati, Minerva Mills and L. Chandra Kumar demonstrate the constitutional importance of judicial review.
Nevertheless, judicial power operates within an institutional framework. Courts may lack the resources, democratic mandate or specialist information required for detailed policy administration.
Excessive intervention can blur the distinction between adjudication, legislation and executive implementation.
Judicial restraint does not require courts to tolerate constitutional violations. Rather, it requires them to distinguish unlawful state action from legitimate policy choices.
Improvements in judicial capacity, access to justice, transparent reasoning and timely adjudication can strengthen the effectiveness of review.
Thus, judicial review should be vigorous in protecting constitutional rights and disciplined in respecting the proper functions of other institutions.
- Meaning and origin of judicial review
- Marbury v. Madison (1803)
- Articles 13, 32, 137, 226 and 227
- Three categories of judicial review
- Grounds for invalidating legislation
- Severability, reading down and eclipse
- Kesavananda Bharati (1973)
- Minerva Mills (1980)
- Article 31B and Ninth Schedule
- Waman Rao and I.R. Coelho
- L. Chandra Kumar and S.R. Bommai
- India–USA–UK comparison
- Judicial review versus judicial activism
- Importance, limitations and judicial restraint
