Origins and Status of Judicial Review
The doctrine of judicial review, which empowers courts to examine and invalidate laws or executive actions that violate the constitution, first took root in the United States. It was boldly established in the landmark case of Marbury v. Madison (1803), where Chief Justice John Marshall of the U.S. Supreme Court articulated its foundational principles, asserting the judiciary's authority to strike down unconstitutional legislation.
In contrast, India's Constitution explicitly grants this power to both the Supreme Court and High Courts, embedding it directly in the constitutional framework. The Supreme Court has further elevated judicial review to the status of a basic feature—or element of the basic structure—of the Constitution. This means it forms an inviolable core of India's constitutional identity, impervious even to curtailment through constitutional amendments.
Meaning of Judicial Review
Judicial review empowers the judiciary to scrutinize the constitutionality of legislative enactments and executive orders issued by both Central and State governments. If these measures violate the Constitution—rendering them ultra vires—the courts can strike them down as illegal, unconstitutional, and void. As a result, the government cannot enforce them, upholding the supremacy of the Constitution as the nation's foundational law.
Justice Syed Shah Mohamed Quadri neatly categorized judicial review into three key areas: the examination of constitutional amendments; the scrutiny of laws passed by Parliament and State Legislatures, including subordinate legislation; and the review of administrative actions by the Union government, State governments, and authorities under their control. This framework highlights the judiciary's role in checking excesses across all branches of governance.
The Supreme Court has invoked this power decisively in landmark cases, such as Golaknath (1967), Bank Nationalisation (1970), Privy Purses Abolition (1971), Kesavananda Bharati (1973), and Minerva Mills (1980), each reinforcing the boundaries of constitutional authority. More recently, in 2015, it declared the 99th Constitutional Amendment, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, unconstitutional and void, safeguarding judicial independence.
Importance of Judicial Review
Judicial review stands as a cornerstone of India's constitutional framework, ensuring the document's enduring authority. It serves three vital purposes: first, to affirm the supremacy of the Constitution over all other laws; second, to preserve the delicate federal equilibrium between the Centre and the states; and third, to safeguard the Fundamental Rights of citizens against encroachment.
The Supreme Court has repeatedly underscored this power's indispensable role through landmark observations. In one ruling, it affirmed: "In India it is the Constitution that is supreme and that a statute law, to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not." Emphasizing its guardianship over rights, the Court has described the Constitution as containing "express provisions for judicial review of legislation as to its conformity with the Constitution," particularly for Fundamental Rights, where judges act as "sentinels on the qui vive."
This duty extends to preventing any dilution of these protections. As the Court noted, "As long as some Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened." It positions the Constitution as the "supreme lex, the permanent law of the land," binding every branch of government—executive, legislature, or judiciary—to operate within its limits. No authority, however exalted, can self-judge its powers; that responsibility rests with the Court as the "ultimate interpreter," tasked with delineating the scope of each branch's authority and checking transgressions.
Without this mechanism, the Court has warned, Fundamental Rights would ring hollow: "It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the Fundamental Rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled." Judges, entrusted with upholding the Constitution, must interpret it to maintain the envisioned balance of power, ensuring the legislature and executive respect constitutional boundaries.
The framers embedded judicial review deliberately, as the Court observed, to sustain federalism, shield Fundamental Rights and freedoms, and foster equality, liberty, and a robust nationalism. Far from static, it forms an integral part of constitutional interpretation, allowing the document to adapt to evolving societal needs and challenges.
Constitutional Provisions for Judicial Review
Although the term judicial review does not appear explicitly in the Indian Constitution, its essence is woven into several key articles that empower the Supreme Court and High Courts to scrutinize laws, executive actions, and judicial decisions. This power ensures that legislation and governance align with constitutional supremacy, particularly in safeguarding fundamental rights and resolving disputes. These provisions form the bedrock of India's judicial oversight mechanism.
At the heart of judicial review lies the protection of fundamental rights. Article 13 declares any law inconsistent with or derogatory to these rights as null and void, laying the groundwork for courts to strike down offending statutes. Complementing this, Article 32 grants individuals the right to approach the Supreme Court directly for enforcement of fundamental rights, authorizing it to issue writs, directions, or orders. High Courts enjoy a parallel authority under Article 226, which extends this power not only to fundamental rights but also to "any other purpose," making it a versatile tool for broader constitutional remedies.
The Supreme Court's expansive jurisdiction further reinforces judicial review. Its original jurisdiction under Article 131 covers disputes between the Centre and states or among states, preventing federal imbalances. Appellate powers are outlined in Articles 132 through 134A: Article 132 for constitutional matters, 133 for civil cases involving substantial questions of law, 134 for criminal appeals, and 134A for certificates from High Courts. Article 135 allows the Supreme Court to inherit the Federal Court's jurisdiction over pre-constitutional laws, while Article 136 provides discretionary special leave to appeal from any court or tribunal (excluding military ones), acting as a safety valve for justice. Additionally, Article 143 enables the President to seek the Court's advisory opinion on questions of law, fact, or pre-constitutional issues, blending judicial wisdom with executive consultation.
High Courts wield supervisory authority through Article 227, granting them superintendence over all courts and tribunals in their territories (barring military bodies), ensuring uniformity and accountability at the state level.
Judicial review also extends to legislative competence and conflicts. Article 245 defines the territorial reach of laws enacted by Parliament and state legislatures, while Article 246 delineates their subject matters across the Union, State, and Concurrent Lists. In cases of overlap, Articles 251 and 254 prioritize central laws, rendering conflicting state laws void—a principle courts rigorously enforce. Finally, Article 372 ensures pre-constitutional laws remain valid unless repugnant to the Constitution, subject to judicial validation.
Together, these provisions transform judicial review from an implied doctrine into a robust constitutional mandate, upholding the rule of law in India's federal democracy.
Scope of Judicial Review
In India, the constitutional validity of any legislative enactment or executive order can be challenged before the Supreme Court or High Courts on three primary grounds: first, if it violates the Fundamental Rights enshrined in Part III of the Constitution; second, if it exceeds the competence of the authority that issued it; and third, if it conflicts with other constitutional provisions. This framework underscores the judiciary's pivotal role in upholding the Constitution's supremacy.
Yet, the scope of judicial review in India remains narrower than in the United States, even though the American Constitution does not explicitly mention the concept. The key distinction lies in the protections afforded to individual rights. The U.S. Constitution's due process of law clause empowers its Supreme Court to strike down laws not only for substantive violations—such as being inherently unlawful—but also for procedural flaws, like unreasonableness. In contrast, Article 21 of the Indian Constitution guarantees only the procedure established by law, limiting our Supreme Court to examining whether a law falls within the enacting authority's powers. The Court does not delve into the law's reasonableness, suitability, or policy merits.
This expansive American approach has drawn sharp criticism, with the U.S. Supreme Court often labeled a "third chamber" of the legislature, a super-legislature, or even the ultimate arbiter of social policy. India, however, strikes a balanced path. While it embraces a measure of judicial supremacy akin to the American model, it does not fully adopt the British doctrine of unqualified parliamentary sovereignty. Our Parliament's authority is checked by the Constitution's written nature, its federal structure with a clear division of powers, the inviolability of Fundamental Rights, and judicial review itself. In essence, India's system synthesizes elements of both traditions, fostering a harmonious interplay between judicial oversight and legislative authority.
Judicial Review and the Ninth Schedule
Article 31B of the Indian Constitution provides a shield for laws and regulations listed in the Ninth Schedule, protecting them from legal challenges based on violations of Fundamental Rights. Introduced through the First Constitutional Amendment Act of 1951, this provision—along with the Schedule itself—aimed to safeguard key reform measures from judicial interference. At its inception, the Ninth Schedule included just 13 items. By 2016, however, it had expanded dramatically to 282 entries. State-level enactments in the Schedule primarily addressed land reforms and the abolition of the zamindari system, while parliamentary laws covered a broader array of subjects.
This protective umbrella faced a profound challenge in the landmark I.R. Coelho v. State of Tamil Nadu (2007) judgment. The Supreme Court decisively ruled that laws in the Ninth Schedule cannot enjoy absolute immunity from judicial review. Affirming judicial review as a "basic feature" of the Constitution—first articulated in the Kesavananda Bharati v. State of Kerala (1973) verdict—the Court held that no amendment could erode this core principle simply by consigning a law to the Schedule. Specifically, any law added after April 24, 1973—the date of the Kesavananda Bharati decision—remains open to scrutiny if it infringes Fundamental Rights under Articles 14, 15, 19, or 21, or undermines the Constitution's basic structure.
In its nuanced reasoning, the Court outlined a framework for testing such laws. It emphasized that a law abrogating or abridging Part III rights may violate the basic structure doctrine, warranting invalidation through judicial review—regardless of whether the protection stems from amending Part III or inserting the law into the Ninth Schedule. The decisive criterion is not the amendment's form, but its real-world "direct impact and effect," captured in what the Court termed the "rights test."
Building on precedents like Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain (1975), the judgment required each constitutional amendment to be evaluated on its own merits. Courts must assess the law's actual consequences for Part III rights to determine if it erodes the basic structure. All post-April 24, 1973, amendments expanding the Ninth Schedule must thus be measured against the Constitution's essential features, particularly the interplay of Article 21 (right to life and personal liberty) with Articles 14 (equality) and 19 (freedoms). Even if shielded by the Schedule, a law's provisions remain vulnerable if they dismantle these foundational elements.
Protection under the Ninth Schedule is not blanket but conditional, subject to rigorous constitutional adjudication. Courts apply the "rights test" and "essence of the right" test—drawing from the synoptic view of Part III in the Indira Gandhi case—to gauge the extent of any Fundamental Rights infraction. If a law impairs the basic structure, especially the vital triangle of Articles 21, 14, and 19, it loses the Schedule's shelter. The Court distinguished these tests: while both underpin the basic structure doctrine, the "rights test" takes precedence when an amendment neuters an entire chapter of rights, rendering the "essence" approach from cases like M. Nagaraj v. Union of India (2006) inapplicable.
Practical safeguards temper this openness to challenge. Laws already upheld by the Supreme Court cannot be re-litigated under these principles. Yet, if a Part III-violative law is added to the Ninth Schedule after 1973, it invites fresh scrutiny for basic structure damage. Notably, actions taken or transactions completed under such impugned acts remain insulated from challenge.
For a snapshot of the Ninth Schedule's evolution, the number of acts and regulations added before and after April 24, 1973, appears in Table 27.1. This ruling in I.R. Coelho thus recalibrated the balance between legislative reform and constitutional supremacy, ensuring the judiciary's enduring role as guardian of India's basic structure.