Judicial Review in India: Meaning, Scope & Provisions [UPSC]

Judicial Review is an important feature of the Indian Constitution. It empowers courts to examine whether laws, executive actions, and constitutional amendments are consistent with the Constitution, ensuring that all organs of the State function within constitutional limits.

Judicial Review is a crucial topic for UPSC Prelims (constitutional provisions, Articles 13, 32, 226, important judgments) and GS Paper II of Mains (constitutionalism, separation of powers). Let’s study Judicial Review in India in detail!

Judicial review is the power of the Supreme Court and High Courts to examine and determine whether laws, executive actions, or constitutional amendments are consistent with the Constitution of India. If found to violate constitutional provisions, such laws or actions can be declared unconstitutional and void.​

• Judicial review ensures constitutional supremacy and the rule of law​.
• The term judicial review is not explicitly mentioned in the Constitution​.
• It acts as a check and balance on legislative and executive powers​.
• Both the Supreme Court and the High Courts exercise this power​.
• Any law found ultra vires (beyond powers) becomes null and void​.
• It protects fundamental rights guaranteed under Part III of the Constitution​.
• Citizens can approach both the Supreme Court (under Article 32) and the High Courts (under Article 226) for judicial review.

Also read: Indian Judiciary UPSC Notes: History, Structure of Courts and Functions

Judicial review protects the Constitution by ensuring government actions follow constitutional limits and by safeguarding citizens’ rights from misuse of power.

• To maintain constitutional supremacy and uphold the rule of law​.
• To protect the fundamental rights of citizens from infringement​.
• To ensure the separation of powers among the three organs of government​.
• To check legislative and executive actions for constitutional validity​.
• To prevent the arbitrary exercise of power by any government authority​.
• To interpret constitutional provisions authoritatively​.
• To resolve disputes between the Centre and States regarding legislative competence​.
• To ensure accountability and transparency in governance.

Also read: Communalism in India: Meaning, Evolution and Its Impact | UPSC Polity

Judicial review in India has developed through landmark cases, becoming a basic feature of the Constitution, inspired by the U.S. system but with its own unique approach.

• Origin in the USA: The concept originated from the landmark Marbury v. Madison case (1803) decided by Chief Justice John Marshall, which established judicial review as a check and balance mechanism​.
• A.K. Gopalan Case (1950): The Supreme Court narrowly interpreted Article 21, accepting "procedure established by law" rather than "due process of law," limiting the scope of judicial review initially​.
• Golaknath Case (1967): The  Supreme Court ruled by a 6:5 majority that Parliament could not curtail fundamental rights, holding constitutional amendments under Article 368 as "law" under Article 13​.
• Kesavananda Bharati Case (1973): The 13-judge bench established the Basic Structure Doctrine, ruling that Parliament cannot destroy the basic structure while amending the Constitution, expanding judicial review​.
• Indira Gandhi vs Raj Narain (1975): The Court reaffirmed the basic structure doctrine and held that judicial review and the rule of law are fundamental principles that cannot be set aside​.
• Minerva Mills Case (1980): Struck down sections of the 42nd Amendment attempting to give Parliament unlimited amending power, establishing judicial review as part of the basic structure​​.
• L. Chandra Kumar Case (1997): Affirmed that judicial review by High Courts and the Supreme Court cannot be replaced by tribunals, remaining part of the basic structure.

Also read: What is the Rule of Law? UPSC Notes for Polity

Judicial review in India can be divided into four main categories based on what the courts are reviewing: whether it's a law, government action, or the court's own decision.

1. Judicial Review of Legislation

Courts examine whether laws passed by Parliament or State Legislatures violate constitutional provisions, particularly fundamental rights under Part III.

• Example: If Parliament passes a law that stops people from following their religion, courts can strike it down because it violates Article 25 (right to religious freedom).

2. Judicial Review of Administrative Actions

Courts review executive orders, administrative decisions, and actions of public authorities to ensure they comply with constitutional and legal provisions.

• Example: If a government officer dismisses a government employee without following the proper procedure, courts can overturn that decision through judicial review.

3. Judicial Review of Constitutional Amendments

After Kesavananda Bharati, courts can review and strike down constitutional amendments if they violate the basic structure of the Constitution.

• Example: Even if Parliament tries to pass an amendment to remove the right to vote or end the federal system, courts can reject it because these are part of the basic structure.

4. Judicial Review of Judicial Decisions (Court's Own Decisions)

Under Article 137 of the Constitution, the Supreme Court can review its own judgments.

• Example: If the Supreme Court made a judgment with a clear calculation error or misread an important fact, it can review that judgment.

Also read: Anti-Defection Law in India

While the Constitution does not explicitly mention judicial review, several articles provide the framework that enables courts to exercise this power and ensure constitutional supremacy.

• Article 13: Declares any law contravening fundamental rights as void, forming the foundation of judicial review​.
• Article 32: Guarantees the right to approach the Supreme Court for constitutional remedies, described as the "heart and soul" of the Indian Constitution​.
• Article 226: Empowers High Courts to issue writs for the enforcement of fundamental rights and other legal rights, providing wider jurisdiction than Article 32​.
• Articles 131-136: Grant courts power to adjudicate disputes and interpret constitutional provisions, making the Supreme Court's interpretation binding on all courts​.
• Article 137: Gives the Supreme Court special power to review its own judgments and orders for correcting errors​.
• Article 246: Deals with the distribution of legislative powers between the Centre and the States, subject to judicial review​.
• Article 372(1): Establishes judicial review of pre-constitution legislation to ensure conformity with constitutional provisions.

Also read: Basic Structure Doctrine UPSC Notes: Meaning, Significance & Key Cases

Judicial review and judicial activism are important judicial concepts that define how courts interpret the Constitution and exercise their powers. Here are the key differences:

• Judicial Review: The Supreme Court struck down a law that stops people from voting because it violates Article 19 (freedom of speech)
• Judicial Activism: The Court ordered banning smoking in specific public places in 2001 (Murali Deora case), even though there was no law asking courts to do this; the Court creatively used its power to protect health.

Despite being a fundamental constitutional mechanism, judicial review faces several criticisms regarding its impact on democratic governance.

• Judicial Overreach: Courts sometimes exceed their constitutional mandate by interfering in legislative and executive domains, breaching the separation of powers​.
• Undermines Democratic Principles: Unelected judges can overturn laws passed by elected representatives, potentially conflicting with the democratic will​.
• Violates Separation of Powers: When courts invalidate laws, they overstep constitutional limits and blur boundaries between the judiciary and legislature​.
• Delays Justice Delivery: Judicial review proceedings add to the case backlog and delay the implementation of policies​.
• Lack of Expertise: Judges may lack technical expertise in complex policy matters they review​.
• Inconsistent Application: Different interpretations by different benches lead to legal uncertainty​.
• Undermines Political Constitutionalism: Courts sometimes prescribe legislation rather than merely reviewing it, usurping the legislative role​.
• Arbitrary Exercise: The wide discretionary power under Article 136 can lead to inconsistent outcomes.

As Chief Justice John Marshall  rightly observed, “It is emphatically the province and duty of the judicial department to say what the law is.” 

To truly uphold this role, India must strengthen judicial review through wide-ranging reforms. This requires enhancing the efficiency and capacity of courts, using technology to reduce delays, and maintaining a balance between judicial independence and democratic accountability.

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