Judicial Review in India
Learning Objectives
By the end of this topic, you should be able to:
- Define judicial review and identify its constitutional sources in India (Articles 13, 32, 136, 142, 226).
- Explain how judicial review flows from constitutional supremacy and the separation of powers.
- Distinguish review of legislative action, executive action, and constitutional amendments.
- Explain the basic structure doctrine (Kesavananda Bharati, 1973) and its reinforcement in Minerva Mills (1980).
- State the holding of L. Chandra Kumar (1997) — judicial review under Articles 32 and 226 is itself part of the basic structure.
- Apply the grounds of review (lack of competence, violation of fundamental rights, arbitrariness) to fact patterns.
Quick Answer
Judicial review is the power of courts to examine legislative and executive actions — and even constitutional amendments — and strike them down if they violate the Constitution. Unlike the USA, where the power was inferred in Marbury v. Madison (1803), India's Constitution grants it expressly: Article 13 voids laws inconsistent with fundamental rights, Article 32 lets citizens move the Supreme Court directly, and Article 226 gives High Courts even wider writ powers. The Supreme Court pushed the doctrine furthest in Kesavananda Bharati (1973), holding that even constitutional amendments can be struck down if they destroy the Constitution's basic structure — and in L. Chandra Kumar (1997) it held that judicial review itself is part of that unamendable basic structure. It is the mechanism that makes constitutional limits real.
Overview
A constitution that no one can enforce is just a suggestion. Judicial review is the enforcement mechanism: it answers the question "what happens when Parliament or the government breaks the constitutional rules?" The answer — a court declares the action void — is what converts the Constitution from a political document into supreme law.
India's framers made a deliberate choice here. They had watched the US Supreme Court exercise a power it inferred for itself in Marbury v. Madison, and they decided to remove all doubt by writing the power into the text. Ambedkar called Article 32 — the right to move the Supreme Court for enforcement of fundamental rights — "the very soul of the Constitution and the very heart of it."
The Indian story since 1950 has been a tug-of-war: Parliament amending the Constitution to escape judicial control, and the Court developing doctrines — culminating in basic structure — to preserve it. Understanding that arc is understanding modern Indian constitutional law.
Core Concepts
1. The Foundations: Constitutional Supremacy, Rule of Law, Separation of Powers
Definition: Judicial review rests on three interlocking principles: the Constitution is the supreme law (all state action must conform to it), the rule of law (everyone — including the government — is bound by law), and separation of powers (an independent judiciary checks the other two branches).
Explanation: The logic is simple: if the Constitution is supreme, a law inconsistent with it cannot be valid law; and someone must decide when inconsistency exists. That someone cannot be the legislature judging its own laws — so the task falls to independent courts. Article 13(2) makes this explicit for fundamental rights: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."
Example: If Parliament passed a law authorising detention without any judicial oversight indefinitely, courts would test it against Articles 21 and 22 and strike down the inconsistent portions — the law never becomes operative to that extent.
Real-World Example: In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the IT Act — which criminalised "grossly offensive" online messages — as an unconstitutionally vague and overbroad restriction on Article 19(1)(a) free speech. A validly enacted parliamentary statute simply ceased to exist as law.
Why It Matters: Without judicial review, fundamental rights would depend entirely on legislative self-restraint. With it, every citizen holds an enforceable claim against the state.
Common Misunderstanding: Students say courts "repeal" unconstitutional laws. They don't — repeal is a legislative act. Courts declare the law void; a law violating fundamental rights is stillborn (void ab initio) to the extent of inconsistency.
2. The Constitutional Machinery: Articles 13, 32, 226, 136
Definition: Article 13 renders rights-violating laws void; Article 32 guarantees the right to move the Supreme Court for enforcement of fundamental rights through writs (habeas corpus, mandamus, prohibition, certiorari, quo warranto); Article 226 empowers High Courts to issue the same writs for fundamental rights and any other purpose; Article 136 allows special leave appeals to the Supreme Court from any court or tribunal.
Explanation: Notice the design: Article 226 is actually wider than Article 32 — High Courts can review any illegality, not just fundamental rights violations, while Article 32 is confined to fundamental rights but is itself a fundamental right (it cannot be refused on discretionary grounds the way Article 226 relief can). Article 142 adds the Supreme Court's power to do "complete justice." Together these create one of the world's most accessible systems of constitutional remedy.
Example: A person illegally detained can file a habeas corpus petition in the High Court under Article 226 or directly in the Supreme Court under Article 32 — no need to climb the appellate ladder.
Real-World Example: The entire edifice of Public Interest Litigation — from Hussainara Khatoon (1979, undertrial prisoners) to Vishaka (1997, workplace sexual harassment guidelines) — was built on Articles 32 and 226, with courts relaxing standing rules so public-spirited citizens could invoke review on behalf of those who could not.
Why It Matters: In exams and practice alike, choosing the right forum and article is the first analytical step in any constitutional challenge.
Common Misunderstanding: Students assume Article 32 covers all illegality. It covers only fundamental rights violations — a purely statutory grievance (say, a wrong tax assessment with no rights dimension) belongs under Article 226 or ordinary appeal, not Article 32.
3. The Comparative Origin: Marbury v. Madison (1803)
Definition: Marbury v. Madison is the US Supreme Court decision in which Chief Justice Marshall established that courts may refuse to enforce congressional statutes that conflict with the Constitution — the birth of modern judicial review.
Explanation: William Marbury, appointed a justice of the peace by outgoing President Adams, never received his signed commission; Secretary of State James Madison (under the new President Jefferson) withheld it. Marbury sued directly in the Supreme Court under the Judiciary Act of 1789. Marshall held Marbury was entitled to the commission, but the statutory provision letting him sue in the Supreme Court's original jurisdiction was unconstitutional — Congress could not expand that jurisdiction beyond Article III. In striking down the provision, the Court claimed the power to review legislation, reasoning that "it is emphatically the province and duty of the judicial department to say what the law is."
Example: The elegance of the judgment: Jefferson's administration "won" the case (Marbury got no commission), so there was nothing to defy — yet the Court walked away holding the far greater prize of review power.
Real-World Example: India learned from this history by codifying the power. Where American judicial review rests on inference from constitutional supremacy, Articles 13, 32 and 226 state it in black and white — which is why Indian courts have never faced a legitimacy debate about whether the power exists, only about how far it extends.
Why It Matters: Marbury is the standard comparative reference in any essay on judicial review; the India-US contrast (implied vs express power) is a classic exam point.
Common Misunderstanding: Students misremember Marbury as involving a President's appointment being declared unconstitutional. No — the appointment was valid; what was struck down was a provision of the Judiciary Act expanding the Court's original jurisdiction.
4. Review of Constitutional Amendments: The Basic Structure Doctrine
Definition: In Kesavananda Bharati v. State of Kerala (1973), a 13-judge bench held (7:6) that while Parliament may amend any part of the Constitution under Article 368, it cannot alter or destroy its "basic structure" — features such as constitutional supremacy, rule of law, judicial review, federalism, secularism, and democracy.
Explanation: The doctrine emerged from a twenty-year duel. In Shankari Prasad (1951) and Sajjan Singh (1965), the Court held amendments were not "law" under Article 13, so fundamental rights could be amended freely. Golak Nath (1967) reversed course, holding fundamental rights unamendable. Parliament responded with the 24th and 25th Amendments asserting unlimited amending power. Kesavananda found the middle path: amendments are valid, but not those that damage the Constitution's identity. Minerva Mills v. Union of India (1980) then applied the doctrine to Article 368 itself — striking down clauses (4) and (5), inserted by the 42nd Amendment, which had declared amendments immune from judicial review and Parliament's amending power unlimited. The Court's reasoning: a limited amending power is itself part of the basic structure, and "limited power cannot be converted into unlimited power."
Example: A constitutional amendment abolishing elections and making Parliament permanent would be struck down — democracy is basic structure — even if passed with a perfect special majority.
Real-World Example: The doctrine has real teeth: in the NJAC case (2015), the Court struck down the 99th Constitutional Amendment creating a National Judicial Appointments Commission, holding it undermined judicial independence — a basic feature.
Why It Matters: India is the leading global example of substantive limits on constitutional amendment; the doctrine has been borrowed by courts in Bangladesh, Kenya, and elsewhere.
Common Misunderstanding: Students treat the basic structure list as fixed and exhaustive. It is neither — the Court identifies basic features case by case, and deliberately declined to give a closed catalogue.
5. Judicial Review Itself as Basic Structure: L. Chandra Kumar (1997)
Definition: In L. Chandra Kumar v. Union of India (1997), a seven-judge bench held that the power of judicial review vested in the High Courts (Article 226) and the Supreme Court (Article 32) is part of the basic structure and cannot be excluded — even by constitutional amendment.
Explanation: The 42nd Amendment had inserted Articles 323A and 323B, allowing tribunals (like the Central Administrative Tribunal) to take over service and other disputes and excluding High Court jurisdiction over them. The question: can tribunals substitute for constitutional courts? The Court's answer: tribunals may function as courts of first instance and even test statutory provisions, but their decisions remain subject to scrutiny by a High Court Division Bench under Articles 226/227. The clauses excluding High Court review were struck down. Note carefully — this is the opposite of saying tribunals have primacy over courts: it subordinates tribunals to constitutional court review.
Example: A central government employee challenging a dismissal goes first to the Central Administrative Tribunal — but the tribunal's decision can then be challenged before the High Court; a statute cannot cut the High Court out.
Real-World Example: The principle governs today's proliferating tribunal system (NCLT, NGT, armed forces tribunals): whatever Parliament creates, the writ jurisdiction of constitutional courts survives, which is why tribunal reform legislation is repeatedly tested against Chandra Kumar.
Why It Matters: It completes the circle — the tool that protects the Constitution is itself constitutionally protected. Parliament cannot legislate or even amend its way out of judicial scrutiny.
Common Misunderstanding: The pre-rewrite version of this page said Chandra Kumar established "the primacy of administrative tribunals over civil courts." That inverts the holding: the case preserved High Court review over tribunals and struck down provisions excluding it.
6. Grounds and Limits of Review
Definition: Indian courts review state action on three broad grounds: (1) lack of legislative competence (wrong list in the Seventh Schedule), (2) violation of fundamental rights or other constitutional limits, and (3) for executive/administrative action, illegality, irrationality (arbitrariness), and procedural impropriety. The limits: courts apply a presumption of constitutionality, avoid deciding policy wisdom, and generally defer on economic and technical matters.
Explanation: Judicial review is a review of legality, not merits. A court asks "did the state have the power, and did it respect constitutional limits?" — not "was this a good idea?" Doctrines like severability (strike only the bad part), reading down (interpret to save validity), and the presumption of constitutionality keep review targeted. Article 21 jurisprudence after Maneka Gandhi v. Union of India (1978) added a powerful substantive ground: any procedure depriving life or personal liberty must be "fair, just and reasonable," not merely enacted.
Example: If a state legislature taxed "income" (a Union subject, Entry 82 List I), the law fails for lack of competence regardless of how fair the tax is.
Real-World Example: In Justice K.S. Puttaswamy v. Union of India (2017), nine judges recognised privacy as a fundamental right and laid down a proportionality test for state intrusions — modern judicial review in full operation, later applied to uphold-in-part and strike-in-part the Aadhaar scheme (2018).
Why It Matters: Knowing the grounds converts judicial review from an abstract idea into an exam-usable checklist.
Common Misunderstanding: Students believe courts can strike down a law simply for being "unfair" or "bad policy." They cannot — there must be a constitutional hook: incompetence, rights violation, or (for executive action) established administrative-law grounds.
Visual Learning
The evolution of judicial review over amendments — the Parliament vs Court dialogue:
And the analytical flow a court follows:
Key Terms
| Term | Definition | Context / Related Concepts |
|---|---|---|
| Judicial review | Courts' power to test state action against the Constitution and void what fails | Express in India (Arts. 13, 32, 226); implied in the USA |
| Article 13 | Laws inconsistent with fundamental rights are void to the extent of inconsistency | Applies to pre- and post-Constitution laws |
| Article 32 | Fundamental right to move the Supreme Court for enforcement of fundamental rights | Ambedkar's "heart and soul" of the Constitution |
| Article 226 | High Courts' writ power — for fundamental rights and any other purpose | Wider than Art. 32 in scope; discretionary in nature |
| Writs | Habeas corpus, mandamus, prohibition, certiorari, quo warranto | The remedial toolkit of review |
| Basic structure | Unamendable core of the Constitution | Kesavananda (1973); applied in Minerva Mills, NJAC case |
| Ultra vires | Beyond legal power — a law outside the enacting body's competence | First ground of review |
| Presumption of constitutionality | Courts presume statutes valid; challenger bears the burden | A key self-restraint doctrine |
| Reading down | Interpreting a provision narrowly to keep it constitutional | Alternative to striking down |
| Severability | Striking only the invalid portion, preserving the rest | Art. 13: void "to the extent of" inconsistency |
| Judicial activism / restraint | Poles of debate over how vigorously courts should review | PIL era vs deference on policy |
Common Mistakes
Mistake 1: "Judicial review in India, as in the USA, is an implied power the courts gave themselves." Why it's wrong: That describes Marbury v. Madison, not India. The Indian Constitution grants the power expressly — Article 13 (voidness), Article 32 (Supreme Court writs), Article 226 (High Court writs), Article 136 (special leave). Correct understanding: Indian judicial review is textual and undisputed in existence; the contested questions are about its extent (e.g., over amendments), which the basic structure doctrine answered.
Mistake 2: "L. Chandra Kumar gave administrative tribunals primacy over the courts." Why it's wrong: The holding is the reverse. The Court struck down provisions (under Articles 323A/323B) that excluded High Court jurisdiction over tribunal decisions. Correct understanding: Tribunals may act as first-instance forums, but their decisions remain reviewable by High Court Division Benches under Articles 226/227 — because judicial review by constitutional courts is basic structure and cannot be taken away.
Mistake 3: "The Supreme Court can strike down any law it considers unjust or unwise." Why it's wrong: Review is about constitutionality, not desirability. Courts apply a presumption of constitutionality and do not sit as super-legislatures over policy choices. Correct understanding: A law falls only on identifiable constitutional grounds — lack of legislative competence, violation of fundamental rights or other constitutional limits, or manifest arbitrariness. Bad policy that is constitutionally competent survives; the remedy is the ballot, not the writ.
Comparison and Connections
| Aspect | Judicial review (India) | Judicial review (USA) | Parliamentary sovereignty (UK, classic) |
|---|---|---|---|
| Source | Express — Arts. 13, 32, 136, 226 | Implied — Marbury v. Madison (1803) | Courts cannot strike primary legislation |
| Reviews amendments? | Yes — basic structure doctrine | No equivalent doctrine | No entrenched constitution to amend |
| Direct citizen access | Yes — Art. 32 as a fundamental right | No; cases climb the appellate ladder | Judicial review of executive action only |
| Scope of High/lower court review | High Courts have wide writ power (Art. 226) | Federal courts need case-or-controversy standing | Administrative law grounds (GCHQ case) |
Frequently confused pairs:
| Pair | Distinction |
|---|---|
| Judicial review vs appeal | Review tests legality/constitutionality; appeal re-examines correctness on facts and law within the same case hierarchy |
| Article 32 vs Article 226 | 32: Supreme Court, fundamental rights only, itself a fundamental right; 226: High Courts, rights plus any other purpose, discretionary |
| Striking down vs reading down | Voiding a provision vs saving it by narrow interpretation |
| Judicial review vs judicial activism | Review is the constitutional power; activism describes an assertive style of using it (e.g., PIL-era directions) |
Connections within this syllabus: Judicial review enforces Fundamental Rights (topic 2), polices Federalism (topic 12) and Centre-State Relations (topic 6), limits Constitutional Amendments (topic 7), and — through relaxed standing — spawned Public Interest Litigation (topic 13).
Practice Questions
Recall
Q1. Name the constitutional provisions that expressly found judicial review in India, and the five writs. Answer guidance: Articles 13 (voidness), 32 (Supreme Court writs), 226 (High Court writs), 136 (special leave), 142 (complete justice). Writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto — one line on each earns full marks.
Q2. What did the Supreme Court hold in Minerva Mills (1980) regarding Article 368(4) and (5)? Answer guidance: Both clauses (inserted by the 42nd Amendment to immunise amendments from review and declare the amending power unlimited) were struck down; a limited amending power is itself basic structure — "limited power cannot be converted into unlimited power."
Understanding
Q3. Why is Article 226 described as wider than Article 32, yet Article 32 as more fundamental? Answer guidance: Scope: 226 covers fundamental rights and any other purpose; 32 covers only fundamental rights. Status: 32 is itself a fundamental right (cannot be refused as a matter of discretion; suspendable only per Article 359 during emergency), while 226 relief is discretionary. Conclude: wider forum below, stronger guarantee above.
Q4. Explain how Kesavananda Bharati reconciled Parliament's amending power with constitutional supremacy. Answer guidance: Trace Shankari Prasad → Golak Nath → 24th/25th Amendments, then present the 7:6 compromise: Article 368 permits amendment of any provision, including fundamental rights (overruling Golak Nath), but not destruction of the Constitution's identity. Note the doctrine's open-ended list and Minerva Mills' reinforcement.
Application
Q5. Parliament enacts a constitutional amendment providing that election disputes concerning the Prime Minister shall not be questioned in any court. Advise on validity. Answer guidance: This mirrors the 39th Amendment struck down in Indira Nehru Gandhi v. Raj Narain (1975) — the first application of basic structure to invalidate an amendment. Grounds: free and fair elections, rule of law, and judicial review are basic features; ouster of adjudication over an election destroys them. The amendment falls despite proper procedure.
Q6. A statute creates a new tribunal for tax disputes and provides its decisions "shall be final and shall not be called in question in any High Court." A losing party wants to challenge the tribunal's order. Advise. Answer guidance: Apply L. Chandra Kumar: exclusion of High Court jurisdiction under Articles 226/227 is unconstitutional because that review power is basic structure. The finality clause cannot bar a writ petition; the party may approach the High Court (Division Bench). The tribunal remains a valid first-instance forum.
Analysis
Q7. "The basic structure doctrine is counter-majoritarian and undemocratic." Critically evaluate. Answer guidance: Present the critique (unelected judges overriding special majorities; no textual basis; vague catalogue). Then the defence: constitutions bind majorities by design; the doctrine protects democracy's preconditions (elections, review, rights) from transient majorities — the Emergency-era 39th and 42nd Amendments show the danger was real. Conclude with a reasoned position, perhaps noting the doctrine's sparing use.
Q8. Compare the origins and reach of judicial review in India and the United States. Which system protects rights more accessibly, and why? Answer guidance: Origins: express text vs Marbury inference. Reach: India reviews even amendments (basic structure); the US does not. Access: Article 32's direct approach and PIL's relaxed standing vs US standing/case-or-controversy limits. Argue India is formally more accessible, while acknowledging docket burdens and delay as practical qualifiers.
FAQ
Q: Can the Supreme Court review its own judgments? A: Yes, in two limited ways: a review petition (Article 137) heard usually by the same judges, and thereafter a curative petition (Rupa Ashok Hurra v. Ashok Hurra, 2002) on very narrow grounds like violation of natural justice. Neither is a routine second appeal.
Q: Is every unconstitutional law struck down in its entirety? A: No. Article 13 voids a law only "to the extent of" inconsistency. Courts first attempt reading down (a saving interpretation) and severability (excising just the offending part); wholesale invalidation is the last resort.
Q: Can judicial review be suspended during an emergency? A: The power itself is never suspended, but under Article 359 the enforcement of specified fundamental rights can be suspended during a national emergency — though after the 44th Amendment (1978), Articles 20 and 21 can never be suspended. The infamous ADM Jabalpur (1976) holding that even habeas corpus stood suspended was formally overruled in Puttaswamy (2017).
Q: What is the difference between a law being "unconstitutional" and "ultra vires"? A: Ultra vires means "beyond power" — a legislature acting outside its competence (e.g., a state taxing a Union subject). Unconstitutionality is the broader category: it includes ultra vires laws and laws within competence that violate constitutional limits like fundamental rights. Every ultra vires law is unconstitutional; not every unconstitutional law is ultra vires in the competence sense.
Q: Does judicial review apply to private individuals and companies? A: Generally no — constitutional review targets "the State" as defined in Article 12 (government, Parliament, legislatures, local and statutory authorities, and bodies under deep state control). Private wrongs are remedied through ordinary civil and criminal law, though some rights (e.g., Articles 15(2), 17, 23, 24) do run against private actors, and writ courts can reach private bodies performing public functions.
Quick Revision
- Judicial review = courts testing legislative, executive, and even amending action against the Constitution; violative action is void.
- Express constitutional basis: Article 13 (voidness), Article 32 (SC writs — itself a fundamental right), Article 226 (HC writs, wider scope), Article 136 (special leave), Article 142 (complete justice).
- Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
- Marbury v. Madison (1803): US origin — review inferred from constitutional supremacy; India codified it instead.
- Evolution: Shankari Prasad (1951) → Golak Nath (1967) → Kesavananda Bharati (1973): basic structure doctrine, 7:6.
- Minerva Mills (1980): struck down Article 368(4),(5); limited amending power is itself basic structure.
- Indira Nehru Gandhi v. Raj Narain (1975): first amendment struck down on basic structure grounds.
- L. Chandra Kumar (1997): judicial review under Articles 32/226 is basic structure; tribunals cannot exclude High Court review.
- NJAC case (2015): 99th Amendment invalidated — judicial independence is a basic feature.
- Grounds of review: lack of legislative competence; violation of fundamental rights/constitutional limits; arbitrariness and procedural impropriety (executive action).
- Restraint doctrines: presumption of constitutionality, severability, reading down, no review of policy wisdom.
- Exam frame: define → express textual basis → US contrast → basic structure arc → Chandra Kumar → grounds and limits.
Related Topics
Prerequisites
- Introduction to Constitutional Law — constitutional supremacy, the premise of review.
- Fundamental Rights — the rights that review most often enforces.
- Separation of Powers — why the checking function belongs to courts.
Related Topics
- Constitutional Amendments — the basic structure battleground.
- Federalism — competence review polices the Union-State boundary.
- Emergency Provisions — where review faced its severest test (ADM Jabalpur).
Next Topics
- Public Interest Litigation — how relaxed standing democratised judicial review.
- Election and Representation — electoral disputes and the Raj Narain story.