The Constitution of India is the supreme law of the land. It is the framework that guides governance, guarantees rights, and defines the relationship between citizens and the State. Yet, even the most carefully drafted constitution requires a mechanism to ensure that laws and executive actions remain consistent with its principles. That mechanism in India is Judicial Review. Often described as the “soul of the Constitution,” judicial review gives the higher judiciary the authority to strike down unconstitutional laws, protect fundamental rights, and maintain the delicate balance of power between the legislature, executive, and judiciary.
📖 Historical Background
Judicial review has its roots in the American legal system. The landmark U.S. case of Marbury v. Madison (1803) established the principle that courts have the power to declare laws unconstitutional. India, while borrowing heavily from various constitutions, adopted this idea and gave it a unique shape.
The framers of the Indian Constitution were deeply influenced by the need for a strong judiciary. Dr. B.R. Ambedkar and other members of the Constituent Assembly stressed that the judiciary should act as the “protector of the Constitution” and as a check on legislative and executive overreach.
📌 Constitutional Provisions for Judicial Review
The Indian Constitution does not explicitly use the term “judicial review,” but several provisions establish and guarantee it:
- Article 13 – Declares that laws inconsistent with or in derogation of fundamental rights are void.
- Article 32 – Empowers citizens to directly approach the Supreme Court for enforcement of fundamental rights.
- Article 226 – Grants High Courts the power to issue writs for enforcement of rights and for any other purpose.
- Articles 245 & 246 – Define legislative competence, allowing courts to strike down laws made beyond constitutional limits.
- Article 368 – Grants Parliament the power to amend the Constitution but subject to judicial scrutiny (as later interpreted in landmark cases).
⚖️ Scope of Judicial Review in India
Judicial review in India covers three broad areas:
- Review of Legislative Actions – Courts can strike down parliamentary and state laws that violate fundamental rights or exceed legislative competence.
- Example: Striking down unconstitutional amendments.
- Review of Executive Actions – Administrative actions, orders, and policies can be reviewed for arbitrariness, mala fide intentions, or violation of rights.
- Review of Constitutional Amendments – After the Kesavananda Bharati case (1973), even constitutional amendments are subject to review if they damage the “Basic Structure” of the Constitution.
🏛️ Landmark Cases on Judicial Review
1. Shankari Prasad v. Union of India (1951)
The first case where the Supreme Court upheld Parliament’s power to amend fundamental rights. Judicial review was initially limited.
2. Golaknath v. State of Punjab (1967)
Reversed Shankari Prasad and held that Parliament cannot amend fundamental rights. This created tensions between Parliament and the judiciary.
3. Kesavananda Bharati v. State of Kerala (1973)
The most famous judgment. The Supreme Court held that Parliament has wide powers to amend the Constitution, but cannot alter its “Basic Structure.” Judicial review of amendments was firmly established.
4. Indira Gandhi v. Raj Narain (1975)
The Court struck down a constitutional amendment that tried to place the Prime Minister’s election beyond judicial review, reinforcing the concept of the basic structure.
5. Minerva Mills v. Union of India (1980)
Reaffirmed that judicial review itself is part of the “Basic Structure” and cannot be taken away by Parliament.
🔑 Judicial Review and Fundamental Rights
Judicial review is most visible in the protection of fundamental rights. Whenever laws or policies restrict freedom of speech, personal liberty, or equality, the courts intervene.
- Example: Maneka Gandhi v. Union of India (1978) expanded the interpretation of “right to life and personal liberty” under Article 21.
- The judiciary has also struck down preventive detention laws and arbitrary censorship measures.
Without judicial review, rights guaranteed on paper would be meaningless in practice.
🏛️ Judicial Review vs. Parliamentary Supremacy
One of the constant debates in Indian democracy is between judicial supremacy and parliamentary sovereignty.
- Parliament argues it represents the “will of the people” and thus should have the final say.
- The judiciary, however, maintains that the Constitution is supreme, not Parliament, and it is the judiciary’s duty to uphold it.
This tension often plays out in cases involving constitutional amendments, reservation policies, or electoral laws. Yet, this system of checks and balances ensures no organ becomes too powerful.
🌏 Judicial Review in Other Countries – A Comparison
- USA – Judicial review is entirely judge-made through Marbury v. Madison.
- UK – Parliament is sovereign; judicial review is limited.
- India – A middle path, where Parliament is powerful but cannot touch the Constitution’s “basic structure.”
Thus, India’s model is unique – it balances democracy with constitutionalism.
✅ Importance of Judicial Review in India
- Guardian of the Constitution – Prevents abuse of power.
- Protector of Fundamental Rights – Ensures liberty and equality are real, not theoretical.
- Maintains Rule of Law – No one is above the Constitution.
- Checks and Balances – Prevents concentration of power in Parliament or Executive.
- Promotes Justice – Allows citizens to challenge arbitrary and unjust actions.
⚠️ Criticisms of Judicial Review
- Judicial Overreach – Critics argue courts sometimes go beyond review and encroach into policymaking.
- Delay in Justice – Courts take years to decide constitutional cases, weakening the effectiveness of review.
- Unelected Judges vs. Elected Legislature – Raises democratic legitimacy concerns.
- Lack of Accountability – Judges are not directly accountable to the people.
Despite these criticisms, most agree that judicial review is indispensable.
🧭 The Future of Judicial Review in India
With rapid changes in technology, economy, and society, judicial review faces new challenges:
- Data privacy and surveillance laws.
- Environmental regulations vs. development.
- Balancing national security with civil liberties.
- Reviewing complex economic and taxation laws like GST and IBC.
The judiciary will have to adapt while staying faithful to constitutional values.
📝 Conclusion
Judicial review is not merely a legal principle; it is the heartbeat of constitutional democracy in India. It ensures that no law, no government action, and no amendment can trample upon the fundamental principles enshrined in the Constitution. As Justice Khanna once observed, “Judicial review is the touchstone of the Constitution.”
Without it, the Constitution would be a dead document, vulnerable to manipulation. With it, India continues to thrive as a nation where the rule of law prevails over the rule of men.
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