Judicial Review in India Explained

Judicial review is the power of the courts to examine whether a law passed by the legislature or an action taken by the executive conforms to the Constitution, and to strike it down if it does not. In India this power rests mainly with the Supreme Court and the High Courts, and it is widely regarded as one of the most important safeguards of the constitutional order. It turns the written Constitution from a statement of principles into a document that can be enforced against the very institutions it creates.

The Indian Constitution does not use the phrase “judicial review” in a single, tidy provision. Instead, the power is woven through several Articles, most notably Articles 13, 32, 226 and 137, and it has been shaped further by decades of judicial interpretation. This explainer walks through the sources of the power, how it works in practice, the landmark cases that defined it, and the debates that surround it.

Quick Facts

What Is Judicial Review?

At its simplest, judicial review means that no organ of the State is above the Constitution. Parliament and State legislatures make laws, and the executive administers them, but a court can ask whether a particular law or order was within the powers granted by the Constitution and whether it respects the rights guaranteed to citizens. If the answer is no, the court can declare the law or action invalid.

It is useful to separate two broad kinds of scrutiny. The first is the review of legislative action, where a statute or an amendment is tested against the Constitution. The second is the review of administrative action, where an order, rule, notification or decision of a public authority is tested for legality, fairness and reasonableness. Courts in India do both, though the legal tests differ.

Judicial review is not the same as an appeal. In an appeal, a higher court re-examines the merits of a lower court’s decision. In judicial review of administrative action, the court usually looks at the decision-making process and the legal limits of the power, and does not substitute its own view on policy for that of the authority.

Constitutional Basis: Articles 13, 32, 226 and 137

Although the term is absent from the text, several Articles together create an unmistakable structure of review.

Article 13

Article 13 declares that all laws in force before the Constitution, to the extent they are inconsistent with the Fundamental Rights, are void, and that the State shall not make any law that takes away or abridges those rights. Any law made in contravention is void to the extent of the contravention. The Article defines “law” broadly to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law. Clause (4), added by the 24th Amendment in 1971, stated that Article 13 does not apply to constitutional amendments, a provision whose practical effect was later limited by the basic structure doctrine.

Article 32

Article 32 gives every person the right to move the Supreme Court directly for the enforcement of Fundamental Rights, and empowers the Court to issue directions, orders or writs. Dr B. R. Ambedkar described it in the Constituent Assembly as the very soul and heart of the Constitution. The right itself is a Fundamental Right.

Article 226

Article 226 authorises High Courts to issue writs not only for Fundamental Rights but also “for any other purpose”, which gives them a wider jurisdiction than the Supreme Court under Article 32. Article 227 adds a power of superintendence over subordinate courts and tribunals.

Article 137

Article 137 allows the Supreme Court to review its own judgments, subject to rules framed under Article 145. This is technically a “review” of a decision rather than judicial review of legislation, but it is often discussed alongside the topic because it shows the Court’s ability to correct itself. The Court later evolved the “curative petition” in Rupa Ashok Hurra v. Ashok Hurra (2002) as a last remedy after a review is dismissed.

Other provisions support the structure. Articles 245 and 246 and the Seventh Schedule divide legislative powers between the Union and the States, and Article 131 gives the Supreme Court original jurisdiction over disputes between governments. Article 141 makes the law declared by the Supreme Court binding on all courts, and Article 142 allows it to pass orders necessary for “complete justice”.

Origins and the American Influence

The modern idea of judicial review is usually traced to the United States, where Chief Justice John Marshall held in Marbury v. Madison (1803) that a law contrary to the Constitution is void and that courts must say so. The United States Constitution contains no express clause on the point; the Court inferred it from the nature of a written Constitution.

India’s framers borrowed the concept but adapted it. Britain, with its tradition of parliamentary sovereignty, had no equivalent power, and the Government of India Act 1935 had created a Federal Court that mainly decided federal disputes. The Constituent Assembly chose a middle path. It made the Constitution supreme and gave the courts power to enforce it, but it also wrote detailed provisions and a long list of reasonable restrictions on rights, leaving less room for open-ended interpretation than in the United States.

An important difference concerns Article 21. The American Constitution speaks of “due process of law”, which allows courts to test the substance of a law. The Indian Constitution, after debate and consultation with foreign jurists, adopted “procedure established by law”, a phrase drawn from the Japanese Constitution. This initially limited the scope of review, a point that became central in the early cases.

Procedure Established by Law versus Due Process

In A. K. Gopalan v. State of Madras (1950), the Supreme Court read “procedure established by law” narrowly. It held that a law of preventive detention was valid if it had been duly enacted by a competent legislature and prescribed some procedure, and it did not need to be fair or reasonable. Each Fundamental Right was treated as a separate silo.

That approach changed in Maneka Gandhi v. Union of India (1978). Maneka Gandhi’s passport had been impounded without a hearing. The Court held that the procedure must be “right, just and fair” and not arbitrary, fanciful or oppressive, and that Articles 14, 19 and 21 are interconnected. In effect, the Court read substantive due process into the Indian Constitution without changing its words. A law affecting life or personal liberty now has to satisfy tests of reasonableness and non-arbitrariness.

This reading has had wide consequences. It underpins later expansions of the right to life, including the right to livelihood, a clean environment, privacy and dignity, and it gives judicial review a substantive dimension rather than a purely formal one.

Grounds and Standards of Review

Courts do not strike down laws merely because they disagree with them. Several recognised grounds guide the exercise.

Grounds for challenging a law

• Lack of legislative competence: the legislature has legislated on a subject outside the list assigned to it in the Seventh Schedule.
• Violation of Fundamental Rights: the law abridges rights under Part III without satisfying the permitted restrictions.
• Violation of other constitutional provisions: for instance, procedural requirements for passing a Bill, or the federal scheme.
• Arbitrariness: a law may be tested against Article 14 for manifest arbitrariness.

Grounds for challenging administrative action

• Illegality: the authority acted beyond its powers or misinterpreted the law.
• Irrationality: the decision is so unreasonable that no reasonable authority could have taken it, often called the Wednesbury standard after an English case.
• Procedural impropriety: a breach of natural justice, such as denying a hearing or showing bias.
• Proportionality: increasingly used where rights are restricted, asking whether the measure is suitable, necessary and balanced.

Courts also use interpretive tools to save laws where possible. The doctrine of severability removes only the invalid portion of a statute. Reading down gives a provision a narrower meaning to keep it within constitutional limits. The doctrine of eclipse holds that a pre-Constitution law inconsistent with a Fundamental Right is not dead but dormant, and revives if the inconsistency is removed. A law is also presumed to be constitutional, and the burden lies on the person challenging it.

Judicial Review of Constitutional Amendments

The most debated question has been whether Parliament’s amending power under Article 368 can itself be reviewed. The answer evolved through a sequence of cases.

In Golaknath, an eleven-judge Bench held that Fundamental Rights were beyond Parliament’s amending power and applied the doctrine of prospective overruling. Parliament responded with the 24th and 25th Amendments in 1971. The challenge to these amendments led to the thirteen-judge Bench in Kesavananda Bharati, decided on 24 April 1973 by a narrow 7 to 6 majority. The Court upheld Parliament’s wide power to amend but held that it could not damage or destroy the basic structure or framework of the Constitution.

This basic structure doctrine is the strongest form of judicial review in India. Features that courts have identified as part of it include the supremacy of the Constitution, the republican and democratic form of government, secularism, federalism, separation of powers, the rule of law, free and fair elections, and judicial review itself.

Landmark Cases That Shaped the Doctrine

Kesavananda Bharati (1973)

Besides the basic structure ruling, the case reaffirmed that Article 368 gives power to amend but not to rewrite the Constitution’s identity. It remains the most cited constitutional decision in India.

Indira Nehru Gandhi v. Raj Narain (1975)

The Court struck down a clause of the 39th Amendment that sought to place the election of the Prime Minister beyond judicial scrutiny, holding that free and fair elections and the power of adjudication were part of the basic structure.

Maneka Gandhi (1978) and Minerva Mills (1980)

Maneka Gandhi widened Article 21. In Minerva Mills the Court struck down clauses of the 42nd Amendment that had tried to shield amendments from judicial review and to give the Directive Principles precedence over Fundamental Rights, stressing the balance between Parts III and IV.

L. Chandra Kumar (1997)

The Court held that the power of judicial review of the Supreme Court and High Courts under Articles 32 and 226 is part of the basic structure, so tribunals cannot fully exclude High Court scrutiny.

S. R. Bommai (1994)

The Court held that a Presidential Proclamation under Article 356 is open to judicial review, and that the material on which it is based can be examined for relevance.

Other significant decisions

• Shreya Singhal v. Union of India (2015): struck down Section 66A of the Information Technology Act as violating free speech.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): struck down the 99th Amendment and the National Judicial Appointments Commission Act.
• K. S. Puttaswamy v. Union of India (2017): recognised privacy as a Fundamental Right.
• I. R. Coelho v. State of Tamil Nadu (2007): held that laws placed in the Ninth Schedule after 24 April 1973 are open to review on the touchstone of the basic structure and Fundamental Rights.

Judicial Review of Executive Action

Judicial review is not limited to statutes. Government orders, licences, appointments, dismissals, tender decisions and policy implementation can all be examined. The usual vehicle is a writ petition under Article 32 or Article 226.

The five writs

• Habeas corpus: directs that a detained person be produced before the court, testing the legality of detention.
• Mandamus: commands a public authority to perform a public duty.
• Prohibition: prevents a lower court or tribunal from exceeding its jurisdiction.
• Certiorari: quashes an order made without jurisdiction or in violation of natural justice.
• Quo warranto: asks by what authority a person holds a public office.

The scope has widened through public interest litigation, which relaxes the rule that only an affected person can approach the court. A sitting authority’s discretionary power must also be exercised for a proper purpose, on relevant considerations, and without arbitrariness. Even where an action is political in character, such as the dismissal of a State government or the use of the ordinance power, courts have in several cases found that they may review whether constitutional limits were observed, while leaving the wisdom of policy to the elected branches.

Limits, Restraint and the Separation of Powers

Judicial review is not unlimited. Courts have developed principles of restraint that help preserve the balance among the three organs of government.

• Courts generally do not interfere with matters of pure policy, economic choices or legislative wisdom.
• Internal proceedings of Parliament and State legislatures receive a degree of protection under Articles 105 and 122 and Articles 194 and 212, though an illegality of procedure may still be examined.
• Courts avoid questions that are essentially political, such as certain matters of foreign relations.
• A person must usually show a legal injury, though public interest litigation modifies this rule.
• Courts prefer to decide on narrow grounds and avoid unnecessary constitutional rulings.

The Constitution also contains built-in checks. Judges are appointed through a process involving the executive and the judiciary and can be removed only through a special parliamentary procedure. Parliament can change the law that a court has found defective, as long as it does so within constitutional limits. The Constitution’s remedy for a judicial interpretation that the legislature opposes is therefore a lawful amendment or a fresh enactment, not defiance.

Debates, Criticism and the Road Ahead

Judicial review attracts both praise and criticism. Supporters argue that it protects minorities and individuals against majoritarian excess, enforces federalism and keeps governments within the law. Critics, using the term “judicial overreach”, argue that judges sometimes step into policy-making and that unelected courts should not displace the judgment of elected legislatures.

Another debate concerns the appointment of judges. The Second Judges Case (1993) and the collegium system that followed gave the judiciary primacy in appointments, and the attempt to replace it through the 99th Amendment and the NJAC was struck down in 2015. Supporters see this as protecting independence, while critics point to concerns about transparency.

The doctrine continues to evolve in areas such as privacy and data protection, environmental regulation, electoral reforms, personal liberty and the use of technology by the State. What remains constant is the principle stated in Kesavananda: every power under the Constitution is subject to the Constitution.

Conclusion

Judicial review in India is both a legal technique and a constitutional philosophy. It draws on Articles 13, 32, 226 and 137, on borrowed ideas that were reshaped to suit India’s federal and welfare-oriented Constitution, and on landmark decisions such as Kesavananda Bharati, Minerva Mills and Maneka Gandhi. Its value lies in the simple proposition that power must be exercised within legal limits, and its continuing challenge is to apply that proposition without disturbing the balance among the three branches of government.

Frequently Asked Questions

Is judicial review expressly mentioned in the Indian Constitution?

The phrase “judicial review” does not appear, but the power is clearly implied. Article 13 voids laws inconsistent with Fundamental Rights, Articles 32 and 226 allow courts to enforce those rights, and the Supreme Court has held that judicial review is part of the basic structure.

What is the difference between Article 32 and Article 226?

Article 32 allows a person to approach the Supreme Court directly for enforcement of Fundamental Rights. Article 226 empowers High Courts to issue writs for Fundamental Rights and also for any other legal purpose, so its scope is wider.

Can the courts strike down a constitutional amendment?

Yes, but only on limited grounds. Since Kesavananda Bharati (1973), an amendment can be invalidated if it damages or destroys the basic structure of the Constitution. Amendments that merely change a particular provision within that structure are valid.

How did Maneka Gandhi change the meaning of “procedure established by law”?

In Maneka Gandhi (1978), the Supreme Court held that any procedure depriving a person of life or liberty must be fair, just and reasonable, and not arbitrary. This brought an element of due process into Article 21 and linked it with Articles 14 and 19.

What is the difference between judicial review and judicial activism?

Judicial review is the established power to test laws and actions against the Constitution. Judicial activism is a descriptive term for a court taking a proactive approach, sometimes in matters that critics feel belong to the legislature or executive. The two overlap but are not the same.

Which Article allows the Supreme Court to review its own judgments?

Article 137 gives the Supreme Court power to review its own judgments, subject to rules made under Article 145. After a review petition fails, the Court has also recognised a curative petition as a narrow final remedy to prevent a miscarriage of justice.