Judicial review

1. Meaning and constitutional foundations

Judicial review ensures that every public authority acts within constitutional limits. India combines a written, supreme Constitution with parliamentary government; Parliament is therefore not sovereign in the British sense. Courts may invalidate legislation or executive action that violates fundamental rights, exceeds legislative competence or breaches other binding constitutional requirements.

Article 13 declares pre-Constitution laws void to the extent of inconsistency with fundamental rights and prohibits the State from making laws that take away or abridge those rights. Its definition of law includes ordinances, rules, regulations, notifications and customs having the force of law. Judicial review nevertheless extends beyond Article 13: constitutional limits on federal competence and governmental power are also enforceable.

Article 32 guarantees access to the Supreme Court for enforcement of fundamental rights. Article 226 empowers High Courts to issue writs for fundamental rights and for any other purpose, meaning enforcement of other legal rights. Article 227 provides High Courts with supervisory jurisdiction over courts and tribunals within their territories, subject to constitutional exceptions.

• Articles 245–246 and the Seventh Schedule regulate legislative competence; Article 254 addresses repugnancy between Union and State laws in the Concurrent List.
• Article 137 concerns the Supreme Court’s review of its own judgments, not judicial review of governmental action.
• A law is void only to the extent of constitutional inconsistency where its valid and invalid portions can be separated.

2. What courts review and the standards applied

Legislative review asks whether the law-making body had constitutional competence, whether mandatory constitutional procedures were followed and whether the law violates substantive constitutional guarantees. Rights-based scrutiny commonly involves Article 14, the freedoms and restrictions in Article 19, and protection of life and personal liberty under Article 21.

Executive and administrative action may be reviewed for absence or excess of legal authority, mala fides, arbitrariness, irrelevant considerations or denial of natural justice. Review normally concerns legality rather than whether the judge considers the decision administratively preferable. An appeal, by contrast, may permit broader reconsideration of facts and merits under the governing statute.

Constitutional amendments occupy a distinct category. Article 368 confers constituent power, but Kesavananda Bharati v. State of Kerala (1973) held that this power cannot destroy the Constitution’s basic structure. Parliament may amend fundamental rights, but it cannot use amendment power to eliminate essential constitutional features.

• An ordinary statute is ordinarily invalidated for violating a constitutional provision, not merely through a free-standing allegation that it violates the basic structure.
• Article 13(4), inserted by the Twenty-fourth Amendment, excludes Article 368 amendments from Article 13; it does not remove basic structure review.
• Legislation generally enjoys a presumption of constitutionality, but that presumption does not cure demonstrated constitutional defects.

3. Landmark judgments and constitutional amendments

Shankari Prasad v. Union of India (1951) upheld Parliament’s power to amend fundamental rights. Golaknath v. State of Punjab (1967) subsequently held that Parliament could not amend fundamental rights. The Twenty-fourth Amendment, 1971 expressly affirmed Parliament’s constituent power. Kesavananda Bharati reconciled broad amendment power with the basic structure limitation.

The Forty-second Amendment, 1976 attempted to insulate constitutional amendments from judicial challenge and declare Parliament’s amending power unlimited through clauses (4) and (5) of Article 368. Minerva Mills v. Union of India (1980) invalidated these clauses. It affirmed limited amending power and the balance between fundamental rights and Directive Principles as basic constitutional features.

L. Chandra Kumar v. Union of India (1997) held that judicial review under Articles 226–227 and 32 forms part of the basic structure. Tribunals may supplement constitutional courts but cannot replace their constitutionally protected reviewing role. Their decisions remain subject to scrutiny by the relevant High Court.

I.R. Coelho v. State of Tamil Nadu (2007) clarified that laws placed in the Ninth Schedule after 24 April 1973 remain reviewable when their impact on fundamental rights damages the basic structure. Ninth Schedule placement is therefore not a universal constitutional shield.

• The First Amendment, 1951 introduced Article 31B and the Ninth Schedule.
• Waman Rao v. Union of India (1981) established the importance of the 24 April 1973 cut-off for Ninth Schedule scrutiny.
• The Forty-third Amendment, 1977 reversed several Forty-second Amendment restrictions on the review jurisdiction of the Supreme Court and High Courts.

4. Doctrines, remedies and institutional limits

Severability allows courts to remove an unconstitutional portion while preserving the remainder if it can operate independently and remains consistent with legislative intent. The doctrine of eclipse primarily explains how a pre-Constitution law inconsistent with fundamental rights becomes unenforceable to that extent rather than being erased altogether; removal of the inconsistency can revive its operation.

Reading down gives a provision a constitutionally compatible interpretation where its language reasonably permits this. It is not a licence to rewrite legislation. Prospective overruling, used in Golaknath, limits the temporal effects of a ruling to protect settled arrangements. Proportionality assesses whether a rights restriction pursues a legitimate objective through suitable and necessary means while maintaining an appropriate balance.

Constitutional courts may issue habeas corpus, mandamus, prohibition, certiorari and quo warranto. Public interest litigation relaxes traditional standing in appropriate cases, particularly for disadvantaged groups. PIL is a procedural avenue, however, not a separate source of unlimited judicial power.

Judicial restraint requires respect for institutional competence. Courts generally avoid reassessing economic policy merely because another option seems better. Articles 122 and 212 protect parliamentary and legislative proceedings from challenge based only on procedural irregularity; they do not create blanket immunity for substantive illegality or unconstitutionality.

• High Courts ordinarily insist on using an effective statutory alternative remedy, but recognised exceptions include fundamental-rights violations, lack of jurisdiction and breach of natural justice.
• Judicial review concerns constitutional legality; judicial activism describes a more interventionist judicial approach.
• Review can invalidate an unconstitutional decision without requiring the court to choose the replacement policy.

5. Democratic significance and contemporary relevance

Judicial review protects minorities and individuals against unconstitutional exercises of majority power. It also safeguards federalism by enforcing the distribution of legislative authority. Maneka Gandhi v. Union of India (1978) strengthened rights review by requiring procedure affecting personal liberty to be fair, just and reasonable and by reading Articles 14, 19 and 21 together.

The main criticism is the counter-majoritarian difficulty: unelected judges may invalidate decisions made by elected representatives. Other concerns include delayed adjudication, uneven access to courts and judicial entry into technically complex policy fields. These concerns support transparent reasoning, timely decisions and appropriately tailored remedies, not abandonment of constitutional scrutiny.

For Prelims, distinguish the existence of judicial review from its intensity in a particular dispute. Review is neither confined to fundamental rights nor available only in the Supreme Court. Constitutional supremacy requires both effective judicial enforcement and restraint that preserves the legitimate functions of the legislature and executive.

• A legislature can remove the legal basis of a judgment through a valid law, including retrospective legislation within constitutional limits.
• It cannot simply declare a binding judicial decision ineffective without curing the underlying legal defect.

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