Concept of Judicial Review
Judicial Review is the power of the judiciary to examine whether laws and actions of public authorities conform to the Constitution. Through this power, the Supreme Court and High Courts can invalidate measures that violate constitutional provisions or exceed the authority of the institution concerned.
The modern doctrine is historically associated with the U.S. Supreme Court’s decision in Marbury v. Madison (1803), in which Chief Justice John Marshall affirmed the authority of courts to determine the constitutional validity of legislative action.
India incorporated the principle into its constitutional framework through several provisions, although the expression “Judicial Review” is not expressly used in the Constitution.
The doctrine serves two broad purposes: checking unconstitutional State action and giving practical effect to the supremacy of the Constitution.
Constitutional Framework
Judicial Review in India does not flow from a single constitutional provision. It operates through a combination of provisions that define the powers of State institutions and provide remedies against their violation.
Article 13 declares laws inconsistent with Fundamental Rights void. Articles 32 and 226 empower the Supreme Court and High Courts to enforce Fundamental Rights. Articles 245 and 246 determine the legislative competence of Parliament and State Legislatures, while Articles 251 and 254 address inconsistencies between Union and State laws. Article 372 enables judicial scrutiny of laws that existed before the Constitution came into force.
The Supreme Court’s jurisdiction under Articles 131–136 also involves constitutional interpretation in appropriate cases. Article 137 specifically empowers the Supreme Court to review its own judgments and orders, subject to the applicable legal framework.
A law or executive action may therefore be challenged when it violates Fundamental Rights, exceeds constitutional authority, or conflicts with another constitutional provision.
Evolution through Landmark Judgments
The scope of Judicial Review has developed through a series of landmark Supreme Court decisions.
- In A.K. Gopalan v. State of Madras (1950), the Court examined the constitutional validity of preventive detention and contributed to the early development of constitutional adjudication. I.C. Golaknath v. State of Punjab (1967) held that Parliament could not amend Fundamental Rights, although this position was later reconsidered.
- A decisive development came with Kesavananda Bharati v. State of Kerala (1973), which established the Basic Structure Doctrine. The Court held that Parliament’s power to amend the Constitution does not extend to destroying its basic structure.
- In Indira Gandhi v. Raj Narain (1975), the Court recognised the importance of Judicial Review and free and fair elections within the constitutional framework.
- In Maneka Gandhi v. Union of India (1978), the Court expanded the interpretation of personal liberty and required procedures affecting it to satisfy standards of fairness and reasonableness.
The position was reinforced in Minerva Mills v. Union of India (1980), where Judicial Review was affirmed as part of the Constitution’s Basic Structure. Later, S.R. Bommai v. Union of India (1994) strengthened judicial scrutiny of constitutional powers, including the imposition of President’s Rule.
Procedure Established by Law and Due Process of Law
The development of Article 21 jurisprudence highlights the distinction between “procedure established by law” and “due process of law.”
India’s Constitution uses “procedure established by law” under Article 21, while the U.S. constitutional framework follows due process of law. Traditionally, the former focused on whether deprivation of life or personal liberty was authorised by a valid law and followed the prescribed procedure. Due process permits a broader examination of the fairness and reasonableness of the law and its application.
However, the distinction has narrowed considerably in India. Following Maneka Gandhi v. Union of India (1978), the Supreme Court held that a procedure affecting personal liberty must satisfy standards of fairness, reasonableness and non-arbitrariness.
Scope and Significance
Judicial Review can operate against legislative, executive and administrative actions. It can also extend to constitutional amendments when their validity is tested against the Basic Structure Doctrine.
When a challenged measure is found constitutionally valid, the court may uphold it. If only part of a law is unconstitutional and can be separated from the remaining provisions, that portion may be struck down; where necessary, the entire measure may be invalidated.
Its importance lies in making constitutional limitations enforceable in practice. Judicial Review protects Fundamental Rights, checks misuse of public power and safeguards the distribution of authority between the Union and States. It also supports the system of checks and balances among the Legislature, Executive and Judiciary.
Judicial mechanisms such as Public Interest Litigation (PIL) have widened access to constitutional remedies. Suo motu proceedings may also enable courts to take cognisance of matters within their jurisdiction without a conventional petition from an affected individual.
Concerns and Institutional Limits
Judicial Review has generated debate over the appropriate boundaries of judicial power. Since courts can invalidate legislation enacted by elected representatives, excessive intervention may raise concerns about judicial overreach and institutional separation.
India follows checks and balances rather than a strict separation of powers. The Legislature makes laws, the Executive implements them, and the Judiciary interprets the Constitution and adjudicates disputes. Judicial Review must therefore enforce constitutional limits without unnecessarily replacing policy choices entrusted to elected institutions.
Prolonged constitutional litigation and differing judicial interpretations can also create uncertainty about the operation of laws. The central challenge is to preserve effective constitutional scrutiny while respecting the legitimate functions of other organs of government.
Way Forward
The effectiveness of Judicial Review depends on maintaining an appropriate balance between constitutional enforcement and judicial restraint. Courts must remain capable of protecting rights and checking unconstitutional State action while respecting matters that fall within the legitimate policy domain of elected institutions.
A sound constitutional system requires each organ of government to perform its assigned functions within constitutional boundaries. Maintaining this institutional equilibrium can protect judicial independence, strengthen democratic accountability, and uphold constitutional governance.
Conclusion
Judicial Review makes constitutional supremacy enforceable by subjecting State power to judicial scrutiny. Its continued evolution must preserve a careful balance between individual rights, institutional authority and democratic governance, which is essential to India’s constitutional democracy.
Frequently Asked Questions
Q1. What is Judicial Review?
Ans: Judicial Review is the power of the Supreme Court and High Courts to examine the constitutional validity of laws and State actions and invalidate measures that violate constitutional provisions.
Q2. Is Judicial Review expressly mentioned in the Indian Constitution?
Ans: No. The expression is not expressly used in the Constitution. Its power is derived from several provisions, including Articles 13, 32, 226, 245, 246, 251, 254 and 372.
Q3. Which case established the Basic Structure Doctrine?
Ans: Kesavananda Bharati v. State of Kerala (1973) established the Basic Structure Doctrine, limiting Parliament’s power to amend the Constitution.
Q4. Why is Judicial Review part of the Basic Structure?
Ans: In Minerva Mills v. Union of India (1980), the Supreme Court reaffirmed Judicial Review as an essential feature of the Constitution’s Basic Structure.
Q5. What is the difference between “procedure established by law” and “due process of law”?
Ans: Procedure established by law traditionally focuses on legal authority and prescribed procedure, while due process of law permits broader scrutiny of the fairness and reasonableness of laws and their application. Indian jurisprudence has expanded Article 21 protection through judicial interpretation.
Q6. What is the difference between Judicial Review and Judicial Activism?
Ans: Judicial Review involves examining the constitutional or legal validity of State action. Judicial activism refers to a broader judicial approach involving active interpretation and enforcement of constitutional and legal principles.
Q7. Why is judicial restraint important?
Ans: Judicial restraint helps preserve institutional balance. It enables courts to enforce constitutional limits while avoiding unnecessary interference in matters primarily entrusted to the Legislature and Executive.
