Judicial Review in India: Limits, Jurisprudential Evolution, and Constitutional Significance : Author: Nikita Patidar
Judicial review constitutes the cornerstone of Indian constitutionalism, acting as an indispensable mechanism to uphold the rule of law, preserve federal balance, and safeguard fundamental rights. Far from being a doctrine borrowed uncritically from foreign jurisdictions, judicial review in India is anchored directly in the text of the Constitution of India, 1950. This paper critically examines the structural framework, evolutionary trajectories, and constitutional boundaries of judicial review.
ARTICLE
Abstract
Judicial review constitutes the cornerstone of Indian constitutionalism, acting as an indispensable mechanism to uphold the rule of law, preserve federal balance, and safeguard fundamental rights. Far from being a doctrine borrowed uncritically from foreign jurisdictions, judicial review in India is anchored directly in the text of the Constitution of India, 1950. This paper critically examines the structural framework, evolutionary trajectories, and constitutional boundaries of judicial review. By analysing landmark historical cases alongside contemporary developments—including the Supreme Court’s 2024 invalidation of the Electoral Bonds scheme (Association for Democratic Reforms v Union of India), this study evaluates the delicate equilibrium between judicial activism and judicial overreach. The paper concludes that while judicial review is an essential unamendable feature of the Constitution's basic structure, its long-term institutional legitimacy depends on a disciplined adherence to judicial self-restraint and the separation of powers.
1. Introduction
Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments, executive orders, and administrative actions, declaring them void if they violate constitutional provisions. In a constitutional democracy, judicial review serves as the primary enforcement mechanism for constitutional supremacy, ensuring that no branch of government exercises unbridled power.
The framers of the Indian Constitution crafted a framework anchored in constitutional supremacy. Rather then establishing judicial dominance over co-equal branches, the power of judicial review in India is designed to ensure that every constitutional authority acts within the limits established by the Constitution. As Chief Justice R.S. Pathak highlighted in Bandhua Mukti Morcha v Union of India (1984), judicial review is not an assertion of judicial superiority, but an institutional mechanism to enforce constitutional boundaries across all organs of the state.
2. Comparative Foundation: Global Models vs. Indian Hybrid Model
The Indian model of judicial review occupies a unique position in global public law, balancing two contrasting constitutional traditions:
· United Kingdom (Parliamentary Sovereignty): Under the British constitutional system, Parliament is supreme. Courts lack the power to strike down primary legislation enacted by Parliament; judicial review is largely confined to administrative action and subordinate legislation.
· United States (Judicial Supremacy via Precedent): In the U.S. Constitution, judicial review was not explicitly articulated in the original text. It was established through judicial interpretation by Chief Justice John Marshall in the historic decision Marbury v Madison (1803), establishing that "it is emphatically the province and duty of the judicial department to say what the law is."
· The Indian Hybrid Model: The framers of the Indian Constitution deliberately rejected absolute parliamentary sovereignty while refraining from granting absolute supremacy to the judiciary. Instead, they enacted an express statutory and constitutional basis for judicial review within the text itself. As Chief Justice R.S. Pathak highlighted in Bandhua Mukti Morcha v Union of India (1984), judicial review in India is designed not to assert judicial dominance over co-equal branches, but to ensure that every constitutional authority acts within the limits established by the Constitution.
3. Constitutional Provisions
The power of judicial review in India is distributed across a comprehensive matrix of constitutional provisions:
· Article 13 (The Primary Gatekeeper):
o Article 13(1) declares that all pre-constitutional laws, to the extent of their inconsistency with Fundamental Rights (Part III), are void.
o Article 13(2) explicitly prohibits the State from making any law that takes away or abridges Fundamental Rights, rendering any law enacted in violation of this command void ab initio.
o Article 13(3) broadly defines "law" to include ordinances, orders, bye-laws, rules, regulations, notifications, customs, or usages having the force of law.
· Article 32 (Constitutional Remedies in the Supreme Court): Guarantees the right to move the Supreme Court for the enforcement of Part III rights through writs including Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. Dr. B.R. Ambedkar famously referred to Article 32 as the "very heart and soul" of the Constitution.
· Article 226 (Writ Jurisdiction of High Courts): Empowers High Courts to issue directives and writs not only for enforcing Fundamental Rights but also for "any other purpose." This renders the writ jurisdiction of High Courts broader in text than that of the Supreme Court under Article 32.
· Article 227 (Supervisory Jurisdiction): Grants High Courts administrative and judicial superintendence over all courts and tribunals throughout the territories in relation to which they exercise jurisdiction.
· Article 136 (Special Leave Petitions): Grants the Supreme Court sweeping discretionary jurisdiction to grant special leave to appeal from any judgment, decree, sentence, or order in any cause or matter passed by any court or tribunal in India.
· Article 141 and 142 (Binding Precedent and Plenary Power): Article 141 establishes that the law declared by the Supreme Court is binding on all courts within India. Article 142 provides plenary power to the Supreme Court to pass any decree or order necessary for doing "complete justice" in any pending cause.
4. Constitutional Significance of Judicial Review
Judicial review serves three primary functional pillars within the Indian polity:
4.1 Sustaining Constitutional Supremacy and the Rule of Law
The core function of judicial review is ensuring that the Constitution remains the supreme legal authority. It prevents legislative overreach and executive arbitrariness, maintaining the legal boundaries defined by the Constitution.
4.2 Guardian of Fundamental Liberties
The judiciary acts as an institutional protector against state encroachment on individual freedoms. Through expansive interpretations of Article 21 (Right to Life and Personal Liberty), the Supreme Court has broadened the constitutional safety net to encompass non-enumerated rights, including:
The Right to Privacy (K.S. Puttaswamy v Union of India, 2017)
The Right to a Clean Environment (M.C. Mehta v Union of India, 1987)
The Right to Livelihood (Olga Tellis v Bombay Municipal Corporation, 1985)
The Right to Education (Unni Krishnan v State of A.P., 1993, later codified via Article 21A)
4.3 Maintaining Federal Equilibrium
In a federal polity with dynamic Centre-State relations, conflicts over legislative and executive competence are inevitable. Judicial review empowers the courts, specifically the Supreme Court under its original jurisdiction in Article 131, to adjudicate jurisdictional disputes between the Union and the States, enforcing the division of legislative fields mapped out in the Seventh Schedule (List I, List II, and List III).
5. Evolutionary Milestones in Indian Jurisprudence
5.1 A.K. Gopalan v State of Madras (1950)
In the immediate post-independence era, the Supreme Court adopted a literal, textualist approach. In A.K. Gopalan, the Court read fundamental rights as isolated compartments. It held that "procedure established by law" under Article 21 required only formal compliance with a enacted statute, explicitly rejecting the importation of the American "due process of law" doctrine.
5.2 I.C. Golaknath v State of Punjab (1967)
Tensions arose between Parliament and the Judiciary over land reforms and property rights. In Golaknath, an 11-judge bench ruled by a narrow 6:5 majority that constitutional amendments under Article 368 fell within the definition of "law" under Article 13(2). Consequently, Parliament was held to possess no power to abridge or take away Fundamental Rights through constitutional amendments.
5.3 Kesavananda Bharati v State of Kerala (1973)
To resolve the confrontation between legislative power and judicial control, a 13-judge bench established the Basic Structure Doctrine. The Court overruled Golaknath, holding that while Parliament has wide power to amend any part of the Constitution under Article 368, it cannot alter, damage, or destroy the essential features or identity of the Constitution. Crucially, Chief Justice S.M. Sikri and the majority opinions affirmed that Judicial Review is an integral, unamendable component of this basic structure.
5.4 Maneka Gandhi v Union of India (1978)
Following the internal Emergency (1975–77), the Supreme Court fundamentally altered its approach to Article 21. Overturning Gopalan, the Court held that a procedure depriving a person of life or personal liberty cannot merely exist in statute; it must be just, fair, and reasonable. This decision synthesized Articles 14, 19, and 21 (referred to as the "Golden Triangle"), effectively introducing substantive due process into Indian constitutional law.
5.5 L. Chandra Kumar v Union of India (1997)
When Parliament enacted the 42nd Amendment to exclude the jurisdiction of High Courts under Articles 226/227 over administrative disputes by creating statutory tribunals, the Supreme Court struck down the exclusion. A 7-judge bench declared that the power of judicial review vested in the High Courts under Articles 226/227 and the Supreme Court under Article 32 forms an essential, unamendable element of the basic structure. Tribunals can act as courts of first instance, but their decisions remain subject to scrutiny by High Courts.
5.6 Association for Democratic Reforms (ADR) v Union of India (2024)
In its landmark 2024 ruling striking down the Electoral Bonds Scheme, the Supreme Court applied a structured doctrine of proportionality. The Constitution Bench tested legislative amendments made to the Companies Act, Representation of the People Act, and Income Tax Act against the voters' fundamental right to information under Article 19(1)(a). The Court held that anonymous political funding was not a proportionate restriction on citizen information rights, confirming that executive economic policies and fiscal laws remain subject to judicial review when fundamental rights are infringed.
6. Textual and Self-Imposed Limits of Judicial Review
Despite its broad scope, judicial review in India is subject to explicit constitutional bars, procedural limits, and doctrines of judicial self-restraint.
6.1 Constitutional Exclusions
The Constitution contains specific clauses designed to exclude judicial intervention in defined structural domains:
· Articles 122 and 212: Expressly bar courts from inquiring into the validity of proceedings in Parliament and State Legislatures on the ground of an alleged procedural irregularity.
· Articles 243-O and 243-ZG: Bar courts from interfering in electoral matters related to Panchayats and Municipalities once the formal election process has been notified.
· Article 363: Restricts courts from adjudicating disputes arising out of pre-constitutional treaties, covenants, or agreements entered into between the Dominion of India and former princely states.
6.2 Doctrine of Judicial Self-Restraint in Policy and Economic Matters
Legal scholars such as Upendra Baxi have argued that judicial review maintains institutional credibility only when courts observe structural boundaries. In BALCO Employees' Union v Union of India (2002), the Supreme Court affirmed that courts should not substitute their wisdom for that of the executive in complex economic policy matters. The judiciary intervenes in policy matters only if an action is demonstrably unconstitutional, illegal, or manifestly arbitrary.
6.3 The Political Question Doctrine
Courts generally refrain from resolving purely political questions. However, as established in S.R. Bommai v Union of India (1994), if a political decision breaches constitutional requirements, such as the arbitrary imposition of President’s Rule under Article 356, the court retains the jurisdiction to review the material basis of that decision.
6.4 The Spectrum of Scrutiny: Activism vs. Overreach
The expanding scope of judicial intervention is categorized into three distinct operational approaches:
· Judicial Restraint: A cautious approach where the judiciary defers to legislative and executive policy choices, intervening strictly in cases of clear unconstitutionality or statutory breach.
· Judicial Activism: Proactive judicial intervention to enforce constitutional rights or address legal vacuums when the legislative or executive branches fail to act. A primary example is the issuance of guidelines in Vishaka v State of Rajasthan (1997) to combat workplace sexual harassment before legislative action was taken.
· Judicial Overreach: Occurs when courts cross into legislative drafting or executive administration, substituting judicial preference for constitutional allocation of power. Decisions where courts undertake daily administrative supervision or direct fiscal policy decisions represent overreach, challenging the doctrine of separation of powers (Divisional Manager, Aravali Golf Course v Chander Hass, 2007).
7. Conclusion
Judicial review serves as an essential constitutional balance wheel in India, preserving fundamental rights and holding state authorities to constitutional standards. From early formalist interpretations in A.K. Gopalan to the structural safeguards of Kesavananda Bharati and the proportionality analysis in ADR (2024), the Supreme Court has continually adapted its jurisprudence to protect constitutional values.
However, the power of judicial review carries the obligation of institutional restraint. The judiciary must remain vigilant in protecting rights without assuming the roles of the legislature or executive. By maintaining this balance, the Indian judiciary preserves both the constitutional order and its own institutional legitimacy.
Reference
Cases
· A.K. Gopalan v State of Madras AIR 1950 SC 27
· Association for Democratic Reforms v Union of India (2024) 5 SCC 1
· BALCO Mukti Morcha v Union of India (1984) 3 SCC 161
· Divisional Manager, Aravali Golf Course v Chander Hass (2008) 1 SCC 683
· IC Golaknath v State of Punjab AIR 1967 SC 1643
· KS Puttaswamy v Union of India (2017) 10 SCC 1
· Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
· L Chandra Kumar v Union of India (1997) 3 SCC 261
· Maneka Gandhi v Union of India AIR 1978 SC 597
· SR Bommai v Union of India (1994) 3 SCC 1
· Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645
· Vishaka v State of Rajasthan (1997) 6 SCC 241