Judicial Review
🚀 Introduction
🧭 Origin
The concept of Judicial Review was born in the United States of America.
It was first propounded in the historic case of Marbury v. Madison (1803),
by Chief Justice John Marshall, who is considered the father of American Constitutional Law.
In that judgment, he declared that —
“It is emphatically the province and duty of the judiciary to say what the law is.”
In simple words —
if the legislature makes a law that violates the Constitution, the Court has the power to strike it down.
🇮🇳 Judicial Review in India
India adopted this concept, but with a key difference:
Here, the Constitution itself confers this power upon the judiciary.
➡️ Both the Supreme Court and the High Courts have the power of judicial review.
➡️ And the Supreme Court has declared this power to be a Basic Feature of the Constitution.
This means:
Even Parliament cannot take away or limit the power of judicial review —
not even through a constitutional amendment.
💬 Example — 2015 NJAC Judgment
In 2015, the Supreme Court struck down the 99th Constitutional Amendment and the NJAC Act (which sought to change the system of appointing judges).
The Court said these laws were unconstitutional,
because they violated the independence of the judiciary, which is part of the basic structure.
👉 This shows the living power of judicial review —
it acts as a constitutional safety valve whenever any organ of the State exceeds its limits.
🧩 Meaning of Judicial Review
Let’s define it clearly:
Judicial Review is the power of the judiciary to examine whether the laws and executive actions of the Central and State governments conform to the Constitution, and to declare them invalid if they violate it.
When the Court finds a law or order ultra vires (beyond constitutional power),
it becomes null and void, and cannot be enforced by the government.
⚖️ Classification of Judicial Review (as per Justice S.S.M. Quadri)
Judicial Review operates at three levels:
| Type | What It Examines | Examples |
|---|---|---|
| 1. Review of Constitutional Amendments | Checks whether a constitutional amendment violates the basic structure. | Kesavananda Bharati (1973), Minerva Mills (1980) |
| 2. Review of Legislation | Tests whether Parliamentary or State laws (and subordinate legislation) violate the Constitution. | Bank Nationalisation Case (1970), Privy Purses Case (1970) |
| 3. Review of Administrative Actions | Ensures that executive actions (by Centre or States) follow constitutional and legal principles. | Maneka Gandhi Case (1978), NJAC Case (2015) |
🔖 Major Cases Where Judicial Review Was Exercised
| Case | Year | Significance |
|---|---|---|
| Golaknath v. State of Punjab | 1967 | Parliament cannot amend Fundamental Rights. |
| Bank Nationalisation Case | 1970 | Limited the government’s power to take over private property arbitrarily. |
| Privy Purses Abolition Case | 1970 | Declared withdrawal of privileges of former rulers unconstitutional. |
| Kesavananda Bharati v. State of Kerala | 1973 | Propounded the Basic Structure Doctrine — Parliament cannot destroy the basic structure. |
| Minerva Mills v. Union of India | 1980 | Reaffirmed that Judicial Review is part of the Basic Structure. |
| NJAC Case | 2015 | Restored the Collegium System; struck down the NJAC as unconstitutional. |
🌟 Importance of Judicial Review
Why do we need this power?
Because it ensures that no organ of government becomes supreme.
In India, the Constitution is supreme, and Judicial Review is the mechanism that protects this supremacy.
1. Upholds the Supremacy of the Constitution
India is governed by the Rule of Law, not by the rule of Parliament or the Government.
Judicial Review ensures that all laws conform to the Constitution — the supreme law of the land.
“In India it is the Constitution that is supreme… and it is for the judiciary to decide whether any enactment is constitutional or not.”
2. Maintains Federal Balance
In a federal system, power is divided between the Centre and the States.
Judicial Review ensures that neither encroaches on the other’s domain —
thus maintaining the federal equilibrium.
3. Protects Fundamental Rights
If Parliament or the Executive violate Fundamental Rights,
the judiciary acts as a sentinel on the qui vive — meaning, a vigilant guard always on alert.
“As long as Fundamental Rights exist, the power of Judicial Review must exist to protect them.”
💬 Key Judicial Observations:
- Constitutional Supremacy:
The Constitution is supreme lex — the ultimate law of the land.
All branches of government derive their powers from it and must act within its limits. - Judiciary as Final Interpreter:
Only the judiciary can decide whether an action by the Legislature or Executive is within constitutional bounds. - No Branch Above the Constitution:
No authority, however high, can claim to be the final judge of its own powers.
The Supreme Court alone decides the constitutional limits of each organ. - Rights Need Remedies:
Fundamental Rights without Judicial Review would be meaningless —
“rights without remedies are like writing on water.” - Judicial Duty:
It is the duty of judges to strike down unconstitutional laws —
otherwise, the Constitution would become “uncontrolled.” - Balance of Power:
The Supreme Court must ensure that all organs respect the balance envisaged by the Constitution.
Neither Parliament nor the Executive can transgress constitutional limitations. - Founding Fathers’ Vision:
The makers of the Constitution deliberately built Judicial Review into it,
as a tool to:- protect Fundamental Rights,
- maintain federal balance, and
- adapt the Constitution to new social needs through interpretation.
💡 In Simple Terms
Judicial Review acts as:
- the shield protecting citizens’ rights, and
- the sword defending the Constitution from arbitrary power.
It keeps the Constitution alive, adaptive, and supreme.
💬 Closing Remark
“Judicial Review is not a weapon against the government — it is a compass for the Republic.
It ensures that power always bows before principles, and that the Constitution remains the ultimate authority — not Parliament, not the Executive, not even the Judges themselves.”
⚖️ Constitutional Provisions for Judicial Review
Interestingly, the phrase “Judicial Review” does not appear anywhere in the Constitution.
Yet, the power of judicial review is woven throughout the text — expressed in multiple Articles that together create its foundation.
Let’s go one by one 👇
🧾 Key Constitutional Articles Related to Judicial Review
| Article | Essence / Function |
|---|---|
| Article 13 | Declares that any law inconsistent with Fundamental Rights is null and void. (This is the constitutional foundation of judicial review.) |
| Article 32 | Empowers citizens to approach the Supreme Court for enforcement of Fundamental Rights. (Dr. Ambedkar called it the “Heart and Soul” of the Constitution.) |
| Article 131 | Gives the Supreme Court original jurisdiction in Centre–State disputes. |
| Articles 132–134 | Provide for the Supreme Court’s appellate jurisdiction in constitutional, civil, and criminal cases. |
| Article 134A | Lays down the procedure for High Courts to issue a certificate of appeal to the Supreme Court. |
| Article 135 | Enables the Supreme Court to exercise the jurisdiction of the old Federal Court under pre-1950 laws. |
| Article 136 | Gives the Supreme Court discretionary power to grant Special Leave to Appeal (SLP) from any court or tribunal (except military). |
| Article 143 | Authorises the President to seek the Supreme Court’s advisory opinion on questions of law or fact. |
| Article 226 | Empowers High Courts to issue writs for Fundamental Rights and for any other legal purpose. |
| Article 227 | Gives High Courts superintendence over all subordinate courts and tribunals. |
| Article 245 | Deals with the territorial extent of legislative powers — laws cannot operate beyond assigned boundaries. |
| Article 246 | Distributes legislative powers between Union and State — the three lists (Union, State, Concurrent). |
| Articles 251 & 254 | Provide that in case of conflict between Central and State laws, the Central law prevails. |
| Article 372 | Continues pre-constitutional laws, but subjects them to judicial review — they remain valid only if consistent with the Constitution. |
👉 Collectively, these provisions give the Supreme Court and High Courts the power to review any law or action against the yardstick of the Constitution.
⚖️ Scope of Judicial Review in India
Judicial Review in India covers both laws and executive actions, but only within defined limits.
A law or order can be challenged in court on three grounds:
- Violation of Fundamental Rights (Part III)
- Lack of Legislative Competence — i.e., the authority making the law had no power under the Constitution to do so.
- Contradiction of Constitutional Provisions — if a law goes against any other constitutional clause.
🇮🇳 Narrower than in the USA
Although India borrowed the concept of judicial review from America, the scope is narrower.
Why? Because of one critical difference:
| Basis | India | USA |
|---|---|---|
| Constitutional Phrase | “Procedure Established by Law” | “Due Process of Law” |
| Meaning | Courts examine only whether the law was made properly and by the right authority. | Courts can examine whether the law itself is fair, reasonable, and just. |
| Result | Judicial review is limited to legality. | Judicial review extends to fairness and policy. |
👉 Hence, American courts have a wider, more activist role — they can strike down a law even for being unreasonable.
Indian courts, on the other hand, can strike down a law only if it violates the Constitution or exceeds legislative competence.
🏛️ Judicial Supremacy vs. Parliamentary Supremacy
- The U.S. Supreme Court is often described as a “third chamber” or a super-legislature, because of its vast judicial review powers.
- The U.K. Parliament, by contrast, is absolutely sovereign — courts cannot strike down its laws.
India has chosen a middle path —
a synthesis between:
- British parliamentary supremacy, and
- American judicial supremacy.
Here, Parliament is powerful but not supreme —
it operates within the Constitution, and the Judiciary ensures those limits are respected.
💬 Analogy:
“Think of India’s system as a car where the Legislature holds the steering,
the Executive presses the accelerator,
but the Judiciary holds the brakes —
ensuring the journey never leaves the constitutional road.”
⚖️ Judicial Review of the Ninth Schedule
Now we come to a fascinating part — the Ninth Schedule.
This is one of the most important examples of how Judicial Review evolved through landmark cases.
🧭 Background
- Article 31B and the Ninth Schedule were added by the First Constitutional Amendment (1951).
- Purpose: To protect certain laws (mainly land reforms) from being challenged for violating Fundamental Rights.
Originally, the Ninth Schedule had 13 laws — today, it has 282.
But the question arose:
➡️ Can Parliament really make laws immune from judicial review by simply putting them in the Ninth Schedule?
The Supreme Court answered this in a series of landmark cases 👇
⚖️ Kesavananda Bharati Case (1973)
- The Court held that Parliament can amend any part of the Constitution,
but cannot destroy its Basic Structure. - It ruled that even laws placed in the Ninth Schedule are subject to judicial review if they damage the basic structure.
⚖️ Waman Rao Case (1980)
- Clarified the Kesavananda ruling.
- Said that:
- Laws placed in the Ninth Schedule before 24 April 1973 (the date of the Kesavananda judgment) are valid.
- Laws added after that date can be reviewed — if they violate the Basic Structure.
⚖️ I.R. Coelho Case (2007)
This judgment reaffirmed and deepened the earlier views.
The Supreme Court clearly declared:
“There can be no blanket immunity from Judicial Review for laws in the Ninth Schedule.”
🔹 Key Principles Laid Down:
- No Absolute Protection:
If a law inserted into the Ninth Schedule violates the Basic Structure, it can be struck down. - Post-1973 Amendments:
Every law added after 24 April 1973 must pass the Basic Structure test. - Test of Impact:
The Court must examine the direct effect of such a law on Fundamental Rights (Articles 14, 19, 21).
This is called the “Rights Test” and “Essence of the Right Test.” - Triangle of Rights:
The combination of Articles 14 (Equality), 19 (Freedom), and 21 (Life and Liberty) forms the core of the Basic Structure.
Any law that destroys this “golden triangle” cannot survive judicial review — even if placed in the Ninth Schedule. - Earlier Validated Laws:
Laws already upheld before 2007 cannot be reopened. - Practical Protection:
Actions already taken under such laws (e.g., land redistribution) remain valid — to avoid chaos.
💡 In Short:
Putting a law in the Ninth Schedule is not a magic shield.
If it destroys equality, liberty, or justice — it will fall.
Because Judicial Review is itself part of the Basic Structure.
💬 Summary Thought:
“You can hide a law inside the Ninth Schedule,
but you can’t hide it from the Constitution.
The Supreme Court stands as the eternal guardian —
reminding every government that no one is above the Constitution, not even Parliament itself.”
💬 Closing Line:
“Judicial Review is the heartbeat of the Constitution —
it keeps the nation alive by ensuring that power, however great, remains accountable to law.
It is India’s silent revolution — a promise that no law, no authority, and no majority can ever rise above justice.”