Judicial review — the power of courts to examine the constitutionality of legislative enactments and executive actions, and to strike them down if found violative of the Constitution — is one of the most significant checks embedded within India’s constitutional architecture. Rooted in the doctrine that the Constitution, not Parliament, is supreme, judicial review enables courts to act as the final guardian of constitutional limits on state power.

While not explicitly named as “judicial review” in the constitutional text, it flows from Articles 13, 32, 226, and 246, and has been firmly established as part of the Constitution’s basic structure through judicial pronouncement. This power has proven indispensable to protecting fundamental rights and constitutional federalism, yet it also raises recurring questions about the appropriate boundary between judicial oversight and democratic decision-making — making its calibrated, restrained exercise as important as its existence.

Constitutional Basis

Article 13 — laws inconsistent with fundamental rights are void
Article 32 and Article 226 — writ jurisdiction enabling review
Article 131 — original jurisdiction over Centre-state/inter-state disputes — federal balance enforcement
Article 246 read with Seventh Schedule — legislative competence review

Importance / Pros of Judicial Review

Upholding constitutional supremacy
- Ensures that no law or executive action, however popularly or legislatively sanctioned, can override the Constitution
  - Judicial review ensures that the Constitution remains the supreme law and all organs of the State function within constitutional limits.
  - Prevents legislative excess — Parliament and State Legislatures cannot pass laws beyond their constitutional competence or in violation of Fundamental Rights.
Protecting fundamental rights
- Serves as the primary mechanism through which citizens can challenge laws or state actions infringing their constitutional rights — a critical safeguard against majoritarian excess
  - It protects citizens from unconstitutional laws, arbitrary executive action, illegal detention, censorship, discrimination and misuse of State power.
Maintaining federal balance
- Adjudicates disputes over legislative competence between Centre and states, preventing either from overstepping constitutionally assigned domains
  - Courts can examine whether Parliament or States have violated the distribution of powers under the Seventh Schedule.
Checking arbitrary executive action
- Enables scrutiny of administrative decisions for arbitrariness, malafide intent, or procedural unfairness, reinforcing rule of law in governance
  - Krishna Kumar Singh v. State of Bihar — 2017 — The Court held that repeated re-promulgation of ordinances is unconstitutional.
Safeguarding the basic structure
- Prevents even constitutional amendments from altering the Constitution’s core identity, ensuring continuity of its foundational values across political transitions
Strengthening institutional accountability
- Provides citizens, civil society, and even other branches of government a constitutional mechanism to question and correct overreach, secrecy, or illegality in governance
  - It compels public authorities to justify their actions before courts and prevents misuse of power.
Confidence for investment and rule of law credibility
- Predictable constitutional limits on state power contribute to legal certainty, which in turn supports economic confidence and protection of property and contractual rights
  - Enforces rule of law — It ensures that every authority, including Parliament, government and bureaucracy, acts according to law.
Electoral fairness
- Judicial review strengthens democratic processes by ensuring transparency, probity and informed voting.
  - Electoral Bonds Case (Association for Democratic Reforms v. Union of India), the Supreme Court unanimously struck down the Union Government’s 2018 Electoral Bond scheme as unconstitutional. The Court ruled that anonymous political funding violates the voters’ right to information under Article 19(1)(a) of the Constitution
Minority Protection
- Judicial review protects minorities and vulnerable groups from majoritarian excess and discriminatory State action. Courts enforce constitutional guarantees of equality, liberty, dignity and cultural rights
  - T.M.A. Pai Foundation v. State of Karnataka (2002) — protected minority educational rights

Concerns Associated with Judicial Review

Democratic legitimacy concern
- Laws are made by elected representatives, while judges are unelected. Frequent invalidation of laws may raise concerns of judicial supremacy over popular will.
  - NJAC judgment, 2015 — Supreme Court struck down the 99th Constitutional Amendment and NJAC Act, despite near-unanimous parliamentary support and ratification by many States.
Delay and uncertainty in governance
- Frequent judicial review of legislation and policy can introduce uncertainty and delay in implementation of government decisions, even where such decisions are otherwise within constitutional bounds
Judicial Overreach & Encroachment
- Judicial review becomes problematic when courts move beyond checking constitutionality and begin designing institutions, making appointments or framing policy-like directions.
  - Anoop Baranwal v. Union of India, 2023 — The Supreme Court directed that the Chief Election Commissioner and Election Commissioners be appointed by a committee consisting of the Prime Minister, Leader of Opposition and Chief Justice of India until Parliament made a law.
- Judicial review may result in judicial encroachment when courts frame guidelines or norms that operate like law.
Delayed Reforms
- Judicial review may delay legislative or executive reforms when courts stay laws or policies before final adjudication.
Subjectivity in “reasonableness” and “arbitrariness” standards
- These standards are vague and open to interpretation, so the same law can be judged differently depending on which judges are hearing the case
  - Example: Section 377 was first upheld as constitutional in 2013 (Suresh Kumar Koushal case), then struck down as unconstitutional in 2018 (Navtej Singh Johar case) — same law, same Constitution, but opposite outcomes just five years apart, showing how much these standards can shift with a different bench
Resource and expertise limitations
- Courts often lack the administrative machinery, technical expertise, and fiscal data available to legislatures and the executive when reviewing complex economic or technical policy

Important Cases Related to Judicial Review

Shankari Prasad v. Union of India — 1951
- The Supreme Court held that Parliament can amend Fundamental Rights through constitutional amendment.
- Early case on whether constitutional amendments are subject to judicial review.
Golak Nath v. State of Punjab — 1967
- The Supreme Court held that Parliament cannot amend Fundamental Rights.
- Strengthened judicial review over Parliament's amending power.
Kesavananda Bharati v. State of Kerala — 1973
- The Court held that Parliament can amend the Constitution, but cannot alter its Basic Structure.
- Most important case on judicial review of constitutional amendments.
Indira Gandhi v. Raj Narain — 1975
- The Court struck down a constitutional amendment that tried to place the election of the Prime Minister beyond judicial review.
- Free and fair elections and judicial review were protected as part of constitutional democracy.
Maneka Gandhi v. Union of India — 1978
- The Court held that procedure under Article 21 must be just, fair and reasonable.
- Expanded judicial review of executive action affecting personal liberty.
Minerva Mills v. Union of India — 1980
- The Court struck down parts of the 42nd Amendment that gave unlimited amending power to Parliament and excessive primacy to DPSPs over Fundamental Rights.
- The Court invalidated the amendments that attempted to bar courts from reviewing constitutional amendments. It stated that judicial review is an essential, unalterable feature of the basic structure.
S.R. Bommai v. Union of India — 1994
- The Court held that proclamation of President's Rule under Article 356 is subject to judicial review.
- Judicial review protects federalism and prevents arbitrary dismissal of State governments.
L. Chandra Kumar v. Union of India — 1997
- The Court held that judicial review by High Courts under Article 226 and Supreme Court under Article 32 is part of Basic Structure.
- Tribunals cannot completely exclude High Court/Supreme Court judicial review.
I.R. Coelho v. State of Tamil Nadu — 2007
- The Court held that Ninth Schedule laws inserted after 24 April 1973 are subject to judicial review if they violate Fundamental Rights forming part of Basic Structure.

Way Forward

Maintain constitutional focus
- Courts should focus on constitutionality, legality and rights violation, not routine policy preferences.
Judicial restraint
- Economic policy, budgetary matters, security issues and technical governance decisions should be reviewed cautiously unless they violate constitutional limits.
Strengthen reasoned judgments
- Judicial review should be based on clear constitutional reasoning, proportionality, arbitrariness tests and due process.
Respect separation of powers
- Courts should act as constitutional guardians, not as substitute legislatures or administrators.

Judicial review is a cornerstone of Indian constitutional democracy. It protects Fundamental Rights, federalism, rule of law and Basic Structure. However, its legitimacy depends on restraint, constitutional reasoning and respect for separation of powers. Therefore, judicial review must remain a tool of constitutional control, not judicial governance.

Sample Mains Question

Explain the meaning and constitutional basis of judicial review in India. (10 Marks, 150 Words)
Judicial review is not explicitly mentioned in the Constitution, yet it forms part of its Basic Structure. Explain. (10 Marks, 150 Words)

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