What is Judicial Review?

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders, and to declare them void if found to be violative of the Constitution. In India, this power is derived from Articles 13, 32, 226, and 136 of the Constitution, making it both an explicit constitutional provision and a part of the basic structure of the Constitution.

Unlike the United States, where judicial review was established through the judicial interpretation in Marbury v. Madison (1803), India's Constitution explicitly provides for it. Article 13 declares that any law inconsistent with or in derogation of Fundamental Rights shall be void. Article 32 empowers the Supreme Court, and Article 226 empowers the High Courts, to issue writs for enforcement of rights.

The Supreme Court in L. Chandra Kumar v. Union of India (1997) held that judicial review under Articles 32 and 226 is an integral and essential feature of the basic structure, and cannot be excluded even by establishing alternative tribunals.

Key Features / Provisions

# Feature Details
1 Article 13 Laws inconsistent with Fundamental Rights are void to the extent of inconsistency
2 Article 32 Supreme Court can issue writs (habeas corpus, mandamus, prohibition, certiorari, quo warranto)
3 Article 226 High Courts can issue writs — wider scope than Art. 32 (covers legal rights too, not just FRs)
4 Article 136 Supreme Court's special leave to appeal from any court or tribunal
5 Article 245 Legislative power subject to provisions of the Constitution
6 Article 246 Distribution of legislative subjects — laws must fall within assigned lists
7 Basic structure element Declared part of basic structure in Kesavananda Bharati (1973)
8 Three types Review of legislative actions, judicial decisions, and administrative actions
9 Doctrine of eclipse Pre-constitutional laws inconsistent with FRs are eclipsed, not void ab initio
10 Doctrine of severability Only the unconstitutional part of a law is struck down, not the entire statute

Historical Background

  • 1950 — A.K. Gopalan v. State of Madras: SC took a narrow view; accepted "procedure established by law" literally under Article 21
  • 1967 — Golaknath v. State of Punjab: SC held that Parliament cannot amend Fundamental Rights — a high point of judicial review
  • 1973 — Kesavananda Bharati v. State of Kerala: Judicial review declared part of the basic structure by the 13-judge bench
  • 1976 — 42nd Amendment attempted to curtail judicial review by amending Articles 31C and 368
  • 1978 — 44th Amendment partially restored judicial review powers curtailed by the 42nd Amendment
  • 1980 — Minerva Mills v. Union of India: SC struck down provisions of 42nd Amendment that had attempted to exclude judicial review
  • 1997 — L. Chandra Kumar v. Union of India: SC held that judicial review under Articles 32 and 226 is part of the basic structure and cannot be ousted by tribunals
  • 2015 — NJAC case: SC used judicial review to strike down the 99th Constitutional Amendment itself

Types of Judicial Review in India

Type Scope Key Articles
Review of legislative actions Courts examine whether laws passed by Parliament or State Legislatures are within constitutional limits Articles 13, 245, 246
Review of administrative/executive actions Courts examine whether executive orders and actions conform to law and the Constitution Articles 32, 226, 136
Review of judicial decisions Higher courts review decisions of lower courts and tribunals for errors of law or jurisdiction Articles 132, 133, 134, 136
Review of constitutional amendments Courts examine whether amendments violate the basic structure (post-Kesavananda Bharati) Article 368 read with basic structure doctrine

UPSC Exam Corner

Prelims: Key Facts

  • Judicial review is explicitly mentioned in the Indian Constitution (unlike the US)
  • Key articles: 13, 32, 226, 136
  • Article 13 applies to both pre-constitutional and post-constitutional laws
  • Article 32 — only for Fundamental Rights; Article 226 — for both FR and legal rights
  • 42nd Amendment tried to curtail it; 43rd and 44th Amendments restored it
  • Declared part of basic structure in Kesavananda Bharati (1973)
  • L. Chandra Kumar (1997) — tribunals cannot oust HC/SC judicial review jurisdiction

Mains: Probable Themes

  1. "Judicial review is the basic structure of the Constitution." — Trace its evolution through landmark judgments
  2. Compare judicial review in India and the United States — constitutional text vs. judicial interpretation
  3. "Is judicial activism an extension of judicial review or a departure from it?" — Analyse with examples
  4. Examine the tension between parliamentary sovereignty and judicial review in India
  5. "The 42nd Amendment's attempt to curtail judicial review was a constitutional crisis." — Discuss

Sources: Article 13 (IndianKanoon) | Judicial Review in India (Wikipedia) | L. Chandra Kumar judgment (IndianKanoon) | Constitution of India — Article 226