Judicial review is the power of courts to examine the constitutionality of legislative and executive action, and to declare void any action found inconsistent with the Constitution. It is not merely one feature among many but has been recognised as so fundamental to India's constitutional design that it cannot be removed even through the amending process itself.
Legal Framework
| Article | Scope |
|---|---|
| Article 13 | Renders laws inconsistent with Fundamental Rights void, providing the substantive basis for review |
| Article 32 | Empowers the Supreme Court to issue writs for enforcement of Fundamental Rights |
| Article 226 | Empowers High Courts to issue writs for enforcement of Fundamental Rights and for any other purpose |
| Article 227 | Empowers High Courts to exercise superintendence over subordinate courts and tribunals |
| Article 245, 246 | Legislative competence provisions, against which laws are also tested for validity |
What Judicial Review Encompasses
Judicial review allows courts to examine whether: legislation is within the legislature's constitutional competence (whether the appropriate legislature, Union or State, had power to enact it on the specific subject matter); legislation or executive action is consistent with Fundamental Rights under Part III; and executive or administrative action complies with statutory authority and principles of natural justice and reasonableness.
Why judicial review is considered indispensable to a constitutional democracy structured around a written constitution with enumerated rights and limited government: A written constitution that establishes limits on governmental power, and guarantees specific rights to individuals, would be rendered largely meaningless without an independent mechanism capable of actually enforcing those limits and rights against a government that might otherwise exceed or violate them; judicial review supplies this essential enforcement function, ensuring the Constitution's supremacy is a genuine, judicially enforceable reality rather than merely an aspirational statement.
Constitutional Basis
Unlike some constitutional systems where judicial review developed primarily through judicial interpretation absent an express textual grant (as famously occurred in the United States through Marbury v Madison), India's Constitution expressly and directly provides the textual basis for judicial review through Articles 13, 32, 226, and 227, among other provisions, making judicial review a clearly intended, textually grounded feature of the constitutional design from the outset, rather than a subsequently judicially invented doctrine without express constitutional footing.
Judicial Review as Part of the Basic Structure
Kesavananda Bharati v State of Kerala (1973) established the basic structure doctrine generally, and subsequent cases specifically identified judicial review itself as one of the basic structure features that even a constitutional amendment cannot validly remove or destroy.
Minerva Mills v Union of India (1980): The Supreme Court struck down provisions of the 42nd Amendment that had sought to place certain categories of legislation entirely beyond the scope of judicial review, holding that such an exclusion would destroy the essential balance the Constitution strikes between Fundamental Rights, Directive Principles, and the judiciary's role in maintaining this balance, and that judicial review itself constitutes an essential feature of the basic structure.
Why the Court treated judicial review as so foundational that even Parliament's amending power cannot touch it: If Parliament could, through the amendment process itself, simply remove the judiciary's power to review the constitutionality of legislation, the entire scheme of limited government and enforceable Fundamental Rights would become illusory; the government of the day could amend away precisely the mechanism designed to check its own potential overreach, defeating the Constitution's foundational purpose of establishing genuinely limited, accountable government.
L Chandra Kumar v Union of India (1997): The Supreme Court further reinforced this principle in the specific context of tribunals, holding that the power of judicial review vested in the High Courts and Supreme Court under Articles 226 and 32 respectively constitutes an integral and essential feature of the Constitution's basic structure, meaning that even legislation creating specialised tribunals cannot validly exclude or entirely oust this judicial review jurisdiction, though tribunals could serve as the first instance forum with subsequent judicial review remaining available.
Illustrations
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Judicial review of legislative competence: A state legislature enacts a law on a subject falling exclusively within the Union List, beyond its own constitutional legislative competence. A court, exercising judicial review, would strike down this law as void for want of legislative competence, illustrating this specific dimension of judicial review's operation.
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Judicial review of Fundamental Rights consistency: A law is challenged as imposing an unreasonable restriction on the Fundamental Right to freedom of speech under Article 19(1)(a), disproportionate to any legitimate restriction permitted under Article 19(2). A court would examine this claim through judicial review, potentially striking down the law if it fails this constitutional test.
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Attempted exclusion of judicial review struck down: Parliament attempts, through a constitutional amendment, to declare that a specific category of legislation shall be entirely immune from any judicial review whatsoever, regardless of its content or effect. Applying the Minerva Mills principle, a court would likely strike down this attempted exclusion itself, holding that judicial review is a basic structure feature that cannot be removed even through the amending power.
Recall Check
- Why is judicial review considered indispensable to a constitutional democracy structured around a written constitution with enumerated rights?
- How does India's constitutional basis for judicial review differ from systems like the United States, where it developed primarily through judicial interpretation?
- Why did the Supreme Court in Minerva Mills treat judicial review as a feature that even Parliament's amending power cannot remove?
Key Cases
Kesavananda Bharati v. State of Kerala (1973) Kesavananda-Bharati-v-State-of-Kerala-1973 Issue: Whether Parliament's amending power under Article 368 was subject to any implied limitations beyond the express procedural requirements. Rule: The amending power does not extend to destroying the Constitution's basic structure or essential features. Held: The Court established the basic structure doctrine, providing the foundational framework within which judicial review was subsequently and specifically identified as one such essential feature.
Minerva Mills v. Union of India (1980) Minerva-Mills-v-Union-of-India-1980 Issue: Whether constitutional amendment provisions seeking to place certain legislation entirely beyond judicial review were valid. Rule: Judicial review is an essential feature of the Constitution's basic structure, and any amendment seeking to exclude it entirely for a category of legislation is invalid. Held: The Supreme Court struck down the offending provisions, confirming judicial review's basic structure status.
L. Chandra Kumar v. Union of India (1997) L-Chandra-Kumar-v-Union-of-India-1997 Issue: Whether legislation creating tribunals could validly exclude the jurisdiction of the High Courts and Supreme Court under Articles 226 and 32. Rule: The judicial review power vested in the High Courts and Supreme Court is an integral part of the basic structure and cannot be entirely ousted, even by legislation establishing specialised tribunals. Held: The Court held that while tribunals could function as courts of first instance, the power of judicial review by the High Courts and Supreme Court could not be entirely excluded, reinforcing judicial review's basic structure protection in this specific institutional context.
Distinctions
| Basis | Judicial Review in India | Judicial Review in the United States |
|---|---|---|
| Constitutional basis | Express textual grant (Articles 13, 32, 226, 227) | Developed through judicial interpretation (Marbury v Madison), without an express textual grant |
| Basic structure protection | Explicitly recognised as an unamendable basic structure feature | Not framed through an equivalent explicit "basic structure" doctrine |
Flashcards
Q: Through which Articles does India's Constitution provide an express textual basis for judicial review? A: Articles 13, 32, 226, and 227 (among related provisions).
Q: What did Minerva Mills v Union of India hold about attempts to exclude judicial review through constitutional amendment? A: Such exclusion is invalid, since judicial review is an essential feature of the Constitution's basic structure.
Q: What did L Chandra Kumar v Union of India establish regarding tribunals and judicial review? A: Legislation creating tribunals cannot entirely exclude the judicial review jurisdiction of the High Courts and Supreme Court under Articles 226 and 32.
Q: Why is judicial review considered essential to a system of limited, constitutionally constrained government? A: Without an enforcement mechanism, constitutional limits on government power and guaranteed rights would be largely meaningless in practice.
Q: How does India's constitutional basis for judicial review differ structurally from the American model? A: India's Constitution expressly and textually grants judicial review through specific Articles, unlike the American model, which developed primarily through judicial interpretation absent an equivalent express textual grant.
Exam Scenario
Parliament passes a constitutional amendment establishing a specialised tribunal for a specific category of economic disputes, and includes a provision stating that decisions of this tribunal shall be final and shall not be subject to any further review by the High Courts or Supreme Court whatsoever. A litigant dissatisfied with a tribunal decision wishes to challenge this exclusion of judicial review. Advise the litigant on the strength of this challenge.
Approach: Apply the L Chandra Kumar v Union of India principle, confirming that while Parliament can validly establish specialised tribunals to serve as courts of first instance for specific categories of disputes, it cannot entirely exclude the judicial review jurisdiction of the High Courts and Supreme Court under Articles 226 and 32, since this jurisdiction constitutes an integral part of the Constitution's basic structure. Reinforce this with the broader Minerva Mills principle that judicial review itself, as an essential basic structure feature, cannot be removed even through the constitutional amendment process. Advise the litigant that the provision purporting to entirely exclude further review by the High Courts or Supreme Court is likely to be struck down as unconstitutional, notwithstanding that it was enacted through the amendment process itself, since this specific exclusion violates the basic structure doctrine's protection of judicial review.
See Also
- Nature and Salient Features of Indian Constitution : the basic structure doctrine generally, within which judicial review has been specifically and repeatedly identified as one of the protected essential features.