CONCEPT OF JUDICIAL REVIEW AND ITS SCOPE UNDER THE INDIAN CONSTITUTION

ABSTRACT

This research paper deals with the concept of Judicial review and its scope under the Indian Constitution. Judicial review is one of the fundamental features of the Indian Constitution as it is a mechanism through which the legislative, executive, and administrative actions are subjected to constitutional principles. Judicial review is not mentioned anywhere in the Constitution but through several provisions like Articles 13, 32, 136, 142, and 226, the power of the judiciary to examine the validity of laws and actions is given. The paper also focuses on the three different types of judicial reviews: the review of legislative actions, the review of administrative actions, and the review of judicial decisions. This process helps to ensure constitutional supremacy, the protection of fundamental rights, and the balance of power among the branches of government. The judiciary’s power of judicial review, encompassing the review of legislative actions, administrative decisions, and judicial rulings, makes it essential in maintaining the rule of law and safeguarding individual rights. Through the power of judicial review, the Indian judiciary plays an essential role in ensuring democratic governance and holding people accountable while ensuring the integrity of the Constitution.

KEYWORDS

Judicial Review, Basic Structure Doctrine, Supreme Court, High Court, Constitutional Validity, Fundamental Rights, Rule of Law, Separation of Power, Constitutional Amendments.

INTRODUCTION

Judicial review is the authority of the judiciary to assess the constitutional validity of legislative measures and executive actions. These are the actions taken by the legislative, executive, or administrative branches of government. The process of judicial review helps to ensure that all the laws, policies, and actions taken by the government conform to the Constitution, which is the supreme law of the land.

Constitutional judicial review is generally believed to have commenced with the claim by John Marshall, the fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the Supreme Court of the United States had authority to strike down legislation adopted by Congress. Marshall’s claim of the power of judicial review was not explicitly supported by the text of the U.S. Constitution. Its legitimacy ultimately depended on the Supreme Court’s own decision and the lack of any significant political opposition to it.

Judicial review, although not in the expressed provisions of the Indian Constitution, can be deemed to exist under provisions like Articles 13, 32, 136, 142, and 226. Under this provision, no law, ordinance, regulation, or governmental action may contradict the constitution, hence a reflection of constitutional supremacy and the rule of law. This doctrine secures the principle of the rule of law, preventing the arbitrary exercise of power by the legislature or executive. The judiciary, especially the Supreme Court and High Courts, has been given the power to declare laws or actions as void if they violate the Constitution.

In India, it has been stated as the basic feature of the Constitution under the case of Keshavananda Bharati v. State of Kerala in 1973. In India, judicial review is an important feature of the Constitution and forms part of its basic structure.^[1]

MEANING

Judicial review is the authority of the judiciary to assess whether legislative acts and executive orders from both central and state governments comply with the Constitution. If, during the examination, the judiciary comes to find any violation of the Constitution ( ultra vires), it declares them to be illegal, unconstitutional, and void.

TYPES

Judicial review can be considered as a defining feature of the Indian Constitution by keeping the legislative, administrative as well as judicial actions in line with its provisions. It not only establishes the supremacy of the constitution but also controls the excesses from various organs of the states. The concept can broadly be clubbed into three heads-

1. Review of Legislative Actions

Judicial review of legislative actions gives the judiciary the power to ensure that the laws that are enacted by the legislature are in conformity with the Constitution of India, 1950. Any law that violates constitutional provisions or disrespects its principles can be declared unconstitutional and void. This mechanism ensures that legislative enactments strictly adhere to the constitutional framework.

2. Review of Administrative Actions

It is through judicial review of administrative actions that courts check the activities of the executive and administrative agencies. Those acts which are outside the authority conferred upon them by the Constitution or contravening the provision of the Constitution are invalid. Such a review has become a significant weapon for exercising constitutional discipline and retributive administrative governance. This mechanism ensures that administrative agencies adhere to constitutional principles while exercising their authority.

3. Review of Judicial Decisions

Judicial review of judicial decisions includes higher courts analyzing judgments passed by the lower courts. Though this review does not violate the independence of the judiciary, it makes judicial processes uniform, correct, and efficient. This is important to maintain the credibility and efficient working of the judiciary. This type of review is conducted to rectify or modify previous decisions made by the judiciary itself. (Anon., 2024)

PROCEDURE FOR JUDICIAL REVIEW IN INDIA

The phrase “procedure established by law” provided under Article 21 of the Indian Constitution serves as the principle governing the concept of judicial review. This principle basically means that the law made by the legislature is effective or valid only when there is proper procedure. There is the test of constitutionality that law has to pass; if the law passes that test then only can it be an enforceable law.

The procedure of judicial review typically involves the following steps-

Filing of Petition- A party aggrieved by a law, decision, or action files a petition before the judiciary, usually in a constitutional or high court.
Admissibility Check- The court examines whether the petition meets the required legal criteria, such as jurisdiction, locus standi (the right to bring the case), and timeliness.
Preliminary Hearing- The court may conduct a preliminary hearing to decide if the matter warrants a full review or should be dismissed outright.
Issuance of Notice- If the case is admitted, notices are issued to the respondents (opposing parties) to present their side.
Submission of Documents- Both parties submit relevant documents, evidence, and arguments in support of their case.
Hearing- The court conducts hearings where both parties present their arguments. Legal precedents, constitutional provisions, and statutory interpretations are often discussed.
Examination of Lawfulness- The judiciary reviews the legality and constitutionality of the law, decision, or action in question.
Decision- After thorough analysis, the court delivers its judgment, which may uphold, modify, or annul the challenged law or action.
Implementation- If the court declares a law unconstitutional or an action invalid, it is no longer enforceable, and authorities are required to comply with the court’s decision.
Appeal (if applicable)- In some cases, the aggrieved party may appeal the decision in a higher court.

Judicial review is a procedure that ensures the legislative, executive, and administrative actions are in conformity with the constitution and the rule of law. It maintains the balance of power between the branches of government, protects the rights of individuals, and promotes accountability.

SCOPE

The scope includes reviewing the constitutionality of laws, legality of decisions, and procedural fairness. Although the application of judicial review differs from one jurisdiction to another, it remains a vital check on arbitrary governance in democratic systems.In India it is vast and encompasses three main areas-

1. Judicial Review of Legislative Actions – The judiciary can examine the validity of laws passed by Parliament and State Legislatures. Laws that contravene the provisions of the Constitution, especially the Fundamental Rights (Articles 12-35), can be struck down.

For example, Article 13 categorically states that any law inconsistent with Fundamental Rights is void.

2. Judicial Review of Administrative/Executive Actions – Actions of the executive are brought under judicial scrutiny to ensure that they are in accordance with the Constitution and statutory provisions. The principles of natural justice and fairness in administrative decision-making are enforced through judicial review.

3. Judicial Review of Constitutional Amendments – Although Parliament has been vested with the power to amend the Constitution under Article 368, amendments made are always subject to judicial review not to violate the doctrine of the basic structure (evolved in Keshavananda Bharati v. State of Kerala case, 1973).

The judiciary has struck down amendments like the 99th Constitutional Amendment Act (NJAC case, 2015) for violating this doctrine.

The constitutional validity of any legislative enactment or even an executive order can, therefore, be challenged both in the Supreme Court and in the High Court on these grounds.

Violates fundamental rights given in Part III of the Indian Constitution.
It is beyond the jurisdiction of the authority that has drafted it.
It is repugnant to the constitutional provisions.

BENEFITS

Key advantages of judicial review include-

It upholds Constitutional Supremacy – The constitutional supremacy of the land is ensured through judicial review. All laws, policies, and government actions have to conform to the principles established in the Constitution. This ensures that legislative and executive measures will not be performed against the provisions of the constitutional norms. It strengthens the paramountcy of constitutional values: equality, liberty, and justice over political or personal interests as well.
It checks and maintains a balance – The judiciary acts as the watchdog agency through the exercise of judicial review over legislative and executive activities. Waiving this authority- these branches would both be exercising functions not enjoined upon them and would be enforcing the doctrine of separation theory. By interceptive action, the judiciary could also avoid abuses and maintain an equal balance across the three branches, which sustains a just structure of democratic governance.
It helps to check misuse of powers – Judicial review is one mechanism that would check the misuse or abuse of power by government authorities. The arbitrary and capricious laws and policies passed by the legislature or executive can be challenged in a court of law. Invalidating it is helpful as it minimizes the possibility of an autocracy or a despotic regime by keeping it accountable to constitutional norms.
It Protects Citizens’ Rights – One of the central purposes of judicial review is to protect individual rights and liberties. It offers citizens legal redress against government actions violating their basic rights protected under the Constitution. Courts can annul laws or decisions that are arbitrary and unjust in abridging freedoms like speech, religion, or equal protection of the law and ensure government action is reasonable and fair.
It maintains the Federal Balance –Judicial review is necessary to solve the conflicts within federal governments, such as that between the central and the state governments. Judicial review thus acts as a pre-court that interprets and elaborates on the terms of the Constitution, avoiding unnecessary conflict and ensuring seamless execution of the federal Constitution.
It helps ensure the independence of the Judiciary – Judicial review allows courts to protect their jurisdiction from the encroachment of the executive and legislature. Such independence is essential for ensuring that judgments are fair and unbiased. The judiciary’s ability to review and strike down unconstitutional actions preserves its integrity as a neutral arbiter in governance.
Safeguarding Minority Rights – Judicial review is especially crucial for the protection of rights among minorities and marginalized communities. It helps to prevent the tyranny of the majority, making sure that laws and policies do not unfairly discriminate against or oppress vulnerable groups

LIMITATIONS

Limited Jurisdiction – In India, judicial review is conned to the upper courts, i.e. the Supreme Court and High Courts, that may inquire into the validity of laws and governmental acts. Lower courts do not possess this power, thereby limiting the reach and purview of judicial review. This limitation causes unnecessary delay and congestion in the higher courts and often deprives a common man of the opportunity to seek timely remedy against unconstitutional acts.
Exclusion of Political Questions – Judicial review will not extend to any matters that are political in nature or related to policy decisions. Courts will generally not adjudicate issues that can be labelled as non-justiciable, like political disputes, foreign affairs, or budget allocations. Such limitation is based on the principle of the non-intervention of the Judiciary in the political arena; thereby leaving some important decisions outside the arena of constitutional scrutiny.
Separation of Powers in India – There is no demarcation of powers as in Western countries but a separation of functions. Courts intervene in the areas of the legislature or executive only if an explicit constitutional violation is involved. Such restraint is said to ensure respect for the functions of the other branches while hindering judicial interference in some cases where supervening oversight might have been beneficial.
Limits on Lawmaking and Implementation – The judicial review only involves the legality and constitutionality of laws and actions of the government. The courts cannot make or enforce a law because legislators and the executive branch only do those functions. This limitation restricts the proactive approach of the judiciary towards gaps in the law or policy in governance.
Judicial Restraint – Judges tend to exercise self-restraint so that organs of the Government do not encroach upon each other and the judges do not assume duties belonging to some other organ. This is an essential constraint in preserving democratic institutions; an excessive measure, however, can lead to some kind of perceived inactivity of the judiciary, especially in urgent cases requiring intervention to protect certain constitutional values.
Effect on Government Operations – Since some provisions of the constitution empower the courts to review their states and strike out provisions struck down by them, judicial review, especially the one that invalidates laws or policies, throws a spanner in the running of the governmental activities sometimes. A law or policy struck down by the Judiciary would, in most cases, require extensive revision in the legislature or extensive changes in the administration, necessarily delaying and making inefficient some important government functions.
Abuse of Power – If such judgments are subject to the influence of a judge’s general personal biases, political inclinations, or selfishness, that power could be misused. When such abuse manipulation occurs, it can displace public faith in the laws and could provide a perfect cover for the invasion of the very object of justice. The injury becomes more severe when a judgment is said to Favor individuals or groups rather than the whole society.
Precedential Constraints – Judicial edicts invariably set precedential courses followed by future ones. Although this system encourages uniformity and predictability in analyzing cases, it, at times, tends to hinder the exibility of judiciary actions. In situations where the given causes have been archaic and new developments demand consideration, courts remain hampered by the use of precedent

CONSTITUTIONAL PROVISIONS

The Constitution of India does not have a direct or express provision that empowers courts to declare laws invalid. However, many articles support the process of judicial review. Article 372(1) establishes judicial review of pre-constitutional legislation. Article 13 declares that any law contravening the provisions of the Fundamental Rights shall be void. Articles 32 and 226 entrust the roles of protector and guarantor of fundamental rights to the Supreme Court and High Courts, respectively. Articles 251 and 254 address inconsistencies between Union and State laws, rendering the State law void in such cases. Article 246(3) preserves the exclusive field of State legislative competence for the matters that fall under the State List, but Article 245 brings it within the scope of the provision of the Constitution.

Again, under Articles 131-136, there would be a controversy between the subjects, as well as the State, and/or the Central authority, regarding which Constitutional provision is supposed to prevail. Such an interpretation by the Supreme Court binds it as a rule for all courts. Article 137 provides the Supreme Court special review powers over its judgments or orders, enabling it to correct patent errors on the face of the record, including those relating to criminal cases. Such provisions together provide for judicial authority to uphold constitutional tenets and validate the very law.

LANDMARK CASE LAWS

1. Judicial Review and Basic Structure Doctrine

Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461

This case laid down the Basic Structure Doctrine, which asserted that the Parliament’s amending power, as provided by Article 368, was not absolute. The Supreme Court of India held that judicial review is a constituent part of the Constitution’s basic structure and, hence, cannot be changed to violate its basic structure by-laws or amendments to the Constitution.

This judgment reaffirmed the role of the judiciary as the protector of the Constitution, safeguarding fundamental rights and restraining legislative and executive powers. It ensured that the core values of the Constitution were preserved, even as amendments were made. This landmark decision protected democratic principles and the rule of law in India. The Apex Court held that judicial review is a part of the basic structure of the Constitution, which cannot be taken away even by a constitutional amendment^[2].

2. Judicial Review of Legislative Actions

State of Madras v. V.G. Row, AIR 1952 SC 196

This case dealt with the declaration of an association as unlawful, which was challenged as a violation of the right to freedom of association under Article 19(1)(c). The Supreme Court declared the law as struck down because the restrictions were unreasonable and did not satisfy the requirement of procedural fairness.

The Court laid down the principle that restrictions on fundamental rights must meet the test of reasonableness, ensuring a balance between individual rights and societal interests. This case reinforced the judiciary’s role in safeguarding fundamental rights through judicial review, emphasizing that restrictions must be justified, proportionate, and procedurally fair.^[3]

3. Judicial Review of Executive Actions

Maneka Gandhi v. Union of India, AIR 1978 SC 597

This case extended the scope of Article 21 (right to life and personal liberty) to include the right to travel abroad. The Supreme Court held that any restriction on personal liberty must follow due process of law, meaning it must be fair, just, reasonable, and not arbitrary. The Court further highlighted the natural justice aspect that requires reasons for governmental action affecting a person’s basic rights. This decision had the effect of making stronger the protection of basic rights, thus ensuring greater transparency and fairness in governmental decisions.^[4]

4. Judicial Review of Constitutional Amendments

Minerva Mills v. Union of India, AIR 1980 SC 1789

In this case, the Apex Court declared certain sections of the 42nd Amendment ultra vires to the Constitution for vesting preference to the Directive Principles of State Policy over the Fundamental Rights. It reiterated the Basic Structure Doctrine, holding that Fundamental Rights are the basic and unamendable components of the Constitution. Holding on to this issue, judicial review again remained relevant because such Fundamental Rights came on the priority list after considering Fundamental Principles. This case continued with enhancing the protection of the constitution, thereby restricting the power that a parliament might create some unconstitutional amendments. ^[5]

The Supreme Court in this case, held that laws that come under the Ninth Schedule of the Constitution are not protected from judicial review if they contravene the basic structure of the Constitution. The Court made it clear that Fundamental Rights cannot be overthrown even by laws in the Ninth Schedule. The decision reinforced the importance of judicial review and upheld the role of the judiciary in ensuring that laws do not infringe upon core constitutional values, particularly equality and justice.

6. Additional Cases

A.K. Gopalan v. State of Madras, AIR 1950 SC 27 – This case clarified the limited scope of judicial review concerning preventive detention laws, setting a precedent for subsequent cases.^[6]
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 – The case reaffirmed the basic structure doctrine, which prohibits amendments that alter the Constitution’s fundamental values, such as the integrity of the electoral process.^[7]
Golak Nath v. State of Punjab (1967)- This decision was later overturned by the 24th Amendment (1971), which empowered Parliament to amend any part of the Constitution, including Fundamental Rights.^[8]

CONCLUSION

This doctrine plays an important role in protecting and enforcing Fundamental Rights, protecting individual liberties, and maintaining the balance between the center and the states. Judicial review legitimizes government actions and prevents undue encroachment on constitutional boundaries by public authorities. It reflects the judiciary’s interpretational and observer roles, thus forming the cornerstone of India’s vibrant constitutional democracy. By ensuring that the acts of the government remain within constitutional mandates, judicial review helps fortify the rule of law and is essential to check on the protection of the rights of citizens and the overall integrity of India’s legal framework.

Judicial review is, therefore the corner stone of constitutional governance whereby the court ensures that legislative and executive actions conform to constitutional imperatives, safeguards the people’s basic rights, and acts as an important organ of check against other arms of government towards accountability, transparency, and rule of law. Yet it should not be misused for its very overstretch can go against the mandate of democratically elected representatives. Ultimately, judicial review reinforces the integrity of democratic institutions by upholding constitutional supremacy and safeguarding individual liberties against arbitrary state actions.

In India, it serves as the guardian of the Constitution, ensuring that the legislature and executive function within constitutional limits. By maintaining a balance of power, it protects individual rights and strengthens democracy.

REFERENCES

Devansh Singh (2023). Judicial review under the Indian Constitution – ipleaders. [online] ipleaders. Available at: https://blog.ipleaders.in/judicial-review-under-the-indian-constitution/ [Last accessed 6 Dec. 2024].
Drishti Judiciary. (2024). Judicial Review under Indian Constitution – Drishti Judiciary. https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/judicial-review-under-coi [Last accessed 06 Dec. 2024].
Basu, D.D. (2021). Introduction to the Constitution of India. 25th ed.
Keshavananda Bharati Sripadagalvaru vs. State Of Kerala And Anr on 24 April, AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225.
State Of Madras vs V.G. Row. Union Of India & State on 31 March 1952 AIR 196, 1952 SCR 597, AIR 1952 SUPREME COURT 196
Maneka Gandhi vs Union Of India on 25 January, 1978 AIR 597, 1978 SCR (2) 621
Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July 1980 AIR 1789, 1981 SCR (1) 206
The Indian Constitution Art. 13
The Indian Constitution Art. 21
The Indian Constitution Art. 32
The Indian Constitution Art. 136
The Indian Constitution Art. 137
The Indian Constitution Art. 142
The Indian Constitution Art. 226
The Indian Constitution Art. 246 (3)
The Indian Constitution Art. 251
The Indian Constitution Art. 254
The Indian Constitution Art. 368
The Indian Constitution Art. 372 (1)

^[1] Keshavananda Bharati v. State of Kerala in 1973 AIR 1973 SC 1461

^[2] Ibid

^[3] State of Madras v. V.G. Row, AIR 1952 SC 196

^[4] Maneka Gandhi v. Union of India, AIR 1978 SC 597

^[5] Minerva Mills v. Union of India, AIR 1980 SC 1789

^[6] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

^[7] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

^[8]Golak Nath v. State of Punjab (1967) AIR 1643, 1967 SCR (2) 762)

Thi v. Raj Narain, AIR 1975 SC 2299

^[8]Golak Nath v. State of Punjab (1967) AIR 1643, 1967 SCR (2) 762)

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