What Is Judicial Review?

Judicial review is the power of Indian courts to check whether laws, executive orders, and government actions comply with the Constitution. It is the legal shield that keeps the rule of law above the rule of men.

In essence, it ensures that no authority — not even Parliament — is above the Constitution. This doctrine is rooted in the belief that a written Constitution must remain the supreme law, and it is the duty of the courts to protect it.

Without judicial review, the guarantee of Fundamental Rights under Part III would be hollow promises, easily overridden by transient political majorities.

Constitutional Basis

Judicial review in India derives its authority from several provisions of the Constitution:

  • Article 13 – Declares that laws inconsistent with Fundamental Rights shall be void.
  • Article 32 – Empowers individuals to move the Supreme Court for enforcement of Fundamental Rights.
  • Article 226 – Grants High Courts the power to issue writs for enforcement of rights.
  • Article 368 – Provides for constitutional amendments, subject to judicial scrutiny under the “basic structure doctrine.”

Landmark Judgments Defining Judicial Review in India

1. A.K. Gopalan v. State of Madras

  • A.K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950. He challenged his detention, arguing it violated his Fundamental Rights under Articles 19 and 21.
  • The Supreme Court took a narrow interpretation of Fundamental Rights, holding that each right was distinct and could be read separately. It said Article 21’s “procedure established by law” meant any procedure enacted by the legislature, even if unfair.
  • This case reflected the judiciary’s early restrictive view of rights and judicial review. However, it was later overruled in Maneka Gandhi v. Union of India (1978), where the Court read Articles 14, 19, and 21 together to expand the scope of personal liberty.

2. Kesavananda Bharati v. State of Kerala

  • Kesavananda Bharati, a seer from Kerala, challenged the Kerala Land Reforms Act. The case raised question the scope of Parliament’s power to amend the Constitution under Article 368.
  • A 13-judge bench (largest in Supreme Court history) ruled by a 7–6 majority that Parliament’s amending power is not unlimited — it cannot alter the “basic structure” of the Constitution.
  • Significance:
    • Judicial review was explicitly declared part of the basic structure.
    • Introduced the Basic Structure Doctrine, protecting core features like rule of law, separation of powers, and Fundamental Rights.
    • This doctrine still guides constitutional interpretation today.

3. Indira Nehru Gandhi v. Raj Narain

  • Raj Narain contested Prime Minister Indira Gandhi’s 1971 election, alleging electoral malpractices. The Allahabad High Court invalidated her election, which she challenged. During the appeal, Parliament passed the 39th Constitutional Amendment, placing the PM’s election beyond judicial review.
  • The Supreme Court struck down the amendment, holding it violated the basic structure — particularly the principles of democracy and rule of law.
  • Reinforced that no individual, however powerful, is above judicial scrutiny. It cemented judicial review as a core constitutional safeguard even against constitutional amendments.

4. Minerva Mills v. Union of India

  • The validity of the 42nd Constitutional Amendment (passed during the Emergency) was challenged. The amendment sought to give primacy to Directive Principles of State Policy over Fundamental Rights and expanded Parliament’s amending power without limitation.
  • The Court struck down sections of the amendment, holding that:
    • Judicial review is part of the basic structure.
    • Harmony between Fundamental Rights and Directive Principles is essential; one cannot override the other.
  • Reaffirmed Kesavananda Bharati and limited Parliament’s amending power, ensuring that judicial review remains intact.

5. L. Chandra Kumar v. Union of India

  • The 42nd Amendment had also created Administrative Tribunals for service matters and limited the jurisdiction of High Courts under Articles 226 and 227, and the Supreme Court under Article 32, over such matters.
  • The Court ruled that:
    • Judicial review by High Courts and the Supreme Court forms part of the basic structure and cannot be excluded even by constitutional amendment.
    • Tribunals can be the first point of adjudication, but their decisions are subject to review by constitutional courts.
  • Cemented the supremacy of High Courts and the Supreme Court in constitutional oversight, ensuring a layered review system.

Conclusion

Judicial review in India is more than a legal doctrine — it is the living mechanism that ensures the Constitution is not a prisoner of the past, but a guide for the future. It balances democratic will with constitutional morality, making sure that power remains a trust, not a weapon.