Judicial Review

Judicial Review is the power of the judiciary to examine the constitutionality, legality, and validity of legislative enactments, executive orders, and administrative actions of the government. It is a cornerstone of constitutional democracy, ensuring that all organs of the state act within the limits prescribed by the Constitution. In India, judicial review forms an integral part of the basic structure of the Constitution, acting as a safeguard against arbitrary governance and protecting the fundamental rights of citizens.

Meaning and Concept

The term judicial review refers to the process by which courts assess whether a law or executive action is consistent with the Constitution or other statutory provisions. If found inconsistent, the judiciary has the authority to declare such law or action void and unenforceable.
In essence, judicial review serves as a check and balance mechanism among the three organs of the state — the Legislature, the Executive, and the Judiciary — thereby upholding the rule of law. It preserves the supremacy of the Constitution over ordinary legislation and ensures that governmental power is exercised lawfully, rationally, and fairly.

Origin and Development

The doctrine of judicial review originated in the United States with the landmark case Marbury v. Madison (1803), decided by Chief Justice John Marshall. In this case, the U.S. Supreme Court held that it was the duty of the judiciary to declare unconstitutional acts of Congress as void. This principle was later adopted and developed in many democratic constitutions, including India’s.
In India, the concept was incorporated by the framers of the Constitution, drawing inspiration from the American model but adapting it to the Indian parliamentary system and federal structure. Judicial review in India is more expansive, covering not only constitutional validity but also administrative and procedural fairness.

Constitutional Basis in India

Judicial review in India is expressly and implicitly provided under several constitutional provisions, particularly:

• Article 13 – Declares that any law inconsistent with or in derogation of fundamental rights shall be void.
• Articles 32 and 226 – Empower the Supreme Court and High Courts, respectively, to issue writs for enforcement of fundamental rights and for “any other purpose”.
• Article 131–136 – Grant the Supreme Court jurisdiction to adjudicate constitutional and legal disputes.
• Article 245–246 – Define the legislative competence of Parliament and State Legislatures, enabling courts to review whether a law is within the authority of the enacting body.
• Article 368 – Subject to judicial interpretation in cases involving constitutional amendments.

These provisions collectively ensure that the Constitution remains the supreme law of the land and that no organ of government can transgress its limits.

Types of Judicial Review

Judicial review in India operates on three main levels:

1. Review of Legislative Actions
   • Courts examine whether laws enacted by Parliament or State Legislatures are constitutionally valid.
   • For example, laws violating fundamental rights or enacted beyond legislative competence may be struck down.
   • Key Case: Kesavananda Bharati v. State of Kerala (1973) — the Supreme Court held that Parliament’s power to amend the Constitution is subject to the basic structure doctrine.
2. Review of Executive Actions
   • The judiciary reviews decisions, orders, and actions of the executive branch to ensure they comply with law and principles of natural justice.
   • Key Case: A.K. Kraipak v. Union of India (1969) — established that even administrative actions must be just, fair, and reasonable.
3. Review of Judicial Decisions (Constitutional Interpretation)
   • The Supreme Court may review its own judgments under Article 137, and also interprets constitutional provisions to clarify the scope of rights and powers.

Grounds of Judicial Review

Indian courts exercise judicial review on several established legal grounds, including:

1. Lack of Legislative or Executive Competence – When an authority acts beyond its jurisdiction.
2. Violation of Fundamental Rights – Any law infringing rights under Part III of the Constitution is void under Article 13.
3. Violation of Constitutional Provisions or the Basic Structure – Any amendment or law damaging essential features like judicial independence, secularism, or federalism is invalid.
4. Procedural Impropriety – When mandatory procedures prescribed by law are not followed.
5. Malafide Action – When actions are taken with bad faith, bias, or improper motives.
6. Unreasonableness and Arbitrariness – Based on the principle from Associated Provincial Picture Houses v. Wednesbury Corporation (1948), adopted in India to strike down irrational administrative decisions.
7. Proportionality – Ensuring that restrictions on rights or administrative measures are proportionate to the objectives sought.

Important Judicial Decisions

1. A.K. Gopalan v. State of Madras (1950) – Early case defining the limited scope of judicial review in personal liberty matters.
2. Shankari Prasad v. Union of India (1951) – Upheld Parliament’s power to amend fundamental rights.
3. Kesavananda Bharati v. State of Kerala (1973) – Established the Basic Structure Doctrine, holding that constitutional amendments damaging the basic structure can be invalidated.
4. Indira Nehru Gandhi v. Raj Narain (1975) – Struck down clauses of the 39th Amendment that attempted to bar judicial review of the Prime Minister’s election.
5. Minerva Mills Ltd. v. Union of India (1980) – Reinforced judicial review as a part of the basic structure of the Constitution.
6. L. Chandra Kumar v. Union of India (1997) – Declared that judicial review of legislative and administrative actions by High Courts and the Supreme Court is part of the Constitution’s basic structure and cannot be taken away.
7. I.R. Coelho v. State of Tamil Nadu (2007) – Reaffirmed that even laws placed under the Ninth Schedule are subject to judicial review if they violate the basic structure.

These decisions collectively underscore that judicial review is an essential feature of constitutional governance in India.

Judicial Review and Separation of Powers

Judicial review embodies the doctrine of separation of powers, ensuring that the legislative and executive branches do not exceed their constitutional boundaries. However, it does not imply judicial supremacy. The Indian Constitution maintains a balance of power, where the judiciary acts as a guardian of the Constitution, not as a rival authority.
The courts intervene only when constitutional limits are violated, adhering to the principle of judicial restraint and respecting the domain of the legislature and executive.

Judicial Review and Fundamental Rights

Judicial review serves as the primary means of enforcing Fundamental Rights guaranteed under Part III of the Constitution. Through Articles 32 and 226, the Supreme Court and High Courts can issue writs — Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto — to protect citizens against arbitrary state actions.
This power of review ensures that citizens’ liberties are shielded from abuse of authority and that governance operates within the framework of constitutional morality.

Advantages of Judicial Review

• Protection of Fundamental Rights and individual liberty.
• Maintenance of Constitutional Supremacy over parliamentary sovereignty.
• Prevention of Arbitrary Governance by the executive and legislature.
• Promotion of Rule of Law and accountability of state authorities.
• Interpretation and Development of Law, ensuring dynamic constitutional growth.

Criticism and Limitations

While judicial review strengthens democracy, it is not without criticism:

• Judicial Overreach – Courts may sometimes intrude into policy-making domains, blurring separation of powers.
• Delay and Procedural Complexity – Lengthy litigation may dilute the effectiveness of judicial review.
• Subjectivity – Judicial interpretations may vary depending on the ideological leanings of judges.
• Potential Conflict with Parliamentary Sovereignty – Frequent judicial intervention can lead to friction between organs of government.

Despite these criticisms, Indian courts have generally maintained judicial discipline by adhering to constitutional boundaries and using review powers with caution.

Scope and Contemporary Relevance

In contemporary India, judicial review extends to:

• Constitutional Amendments (ensuring conformity with the basic structure).
• Administrative Decisions (ensuring fairness and reasonableness).
• Delegated Legislation (preventing misuse of subordinate law-making powers).
• Public Interest Litigation (PIL) (ensuring protection of collective and socio-economic rights).