Doctrine of Judicial Review

Legal provision

• Article 13: a law inconsistent with Part III is void to the extent of the inconsistency. Article 13(4) and Article 368(3) keep amendments outside it.
• Article 32: the right to move the Supreme Court is guaranteed. The Court can issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 32 is itself in Part III.
• Article 226: every High Court can issue writs to any person or authority within its territories, for Part III rights "and for any other purpose".
• Article 227: every High Court has superintendence over all courts and tribunals in its territories, except those under the Armed Forces laws.
• Article 131: original jurisdiction of the Supreme Court in disputes between the Government of India and States, or between States. Article 136: special leave to appeal from any court or tribunal.
• Articles 245 and 246: the legislative reach of Parliament and State Legislatures, and the three Lists of the Seventh Schedule.
• Article 368(4) and (5): inserted by the 42nd Amendment, declared invalid in Minerva Mills. The printed text still shows them.

Meaning and definition

Judicial review is the power of the courts to examine whether a law or executive act is valid under the Constitution and to declare it void if it is not. It rests on the supremacy of the Constitution. An organ of government that goes beyond the Constitution acts without authority to that extent.

In the United States, the Supreme Court asserted this power in Marbury v. Madison (1803), although the American text does not state it in words. India differs, because Articles 13, 32, 131, 136, 226, 227, 245 and 246 give the power expressly.

Detailed explanation

Step 1: the Articles behind the power

Article 13 supplies the rule. Articles 32 and 226 supply the remedy. Article 32 lets a person go straight to the Supreme Court for a Fundamental Right. Article 226 lets a High Court issue writs for Fundamental Rights and for any other purpose. Articles 245 and 246 supply the test of legislative competence. Judicial review is therefore part of the text, not a creation of the courts.

Step 2: what can be reviewed

• Legislation. An Act of Parliament or a State Legislature can be tested for legislative competence (Articles 245 and 246) and against Part III.
• Executive action. Orders, rules and decisions can be tested for breach of the Constitution, for acting beyond the power given by law, and for breach of natural justice. A decision so unreasonable that no reasonable authority would reach it is open to challenge as Wednesbury unreasonableness.
• Constitutional amendments. An amendment under Article 368 is tested only on the basic structure.
• Ninth Schedule laws. In I.R. Coelho v. State of Tamil Nadu, the Court held that laws added to the Ninth Schedule after 24 April 1973 can be tested on the basic structure. Article 31B gives no absolute immunity.

Step 3: judicial review is part of the basic structure

If Parliament could amend away judicial review, no court could check whether an amendment crossed the limit. In Kesavananda Bharati v. State of Kerala, Shelat and Grover, JJ. say the power of judicial review is indispensable and an integral part of the Constitution (para 568). Hegde and Mukherjea, JJ. also state limits on the amending power (para 787).

Minerva Mills Ltd. v. Union of India applied this. The 42nd Amendment inserted clauses (4) and (5) in Article 368. They said no amendment could be questioned in any court and that the amending power had no limit. The Court struck them down because Parliament cannot, by exercising a limited amending power, make it unlimited. A limited amending power is a basic feature. By 4:1, the Court also struck down the 42nd Amendment's extension of Article 31C to all Directive Principles. Bhagwati J agreed on Article 368 but dissented on Article 31C.

The protection is not total. In I.R. Coelho, the Court said that only a kind of judicial review whose removal would destroy or damage the basic structure lies beyond constituent power. Each exclusion must be examined on its own.

Step 4: tribunals

Articles 323A and 323B let Parliament and State Legislatures set up tribunals. Section 28 of the Administrative Tribunals Act, 1985 and clause 2(d) of Article 323A excluded High Court jurisdiction. In S.P. Sampath Kumar v. Union of India (1987), the Court accepted that an alternative institutional mechanism could replace the High Courts if it was an effective and real substitute.

L. Chandra Kumar v. Union of India (1997) reconsidered this. A seven-Judge Bench held that judicial review under Articles 226 and 227 and under Article 32 is part of the basic structure and cannot be excluded. Clause 2(d) of Article 323A and clause 3(d) of Article 323B are void to the extent they exclude it. Tribunals can still decide in the first instance and can test the vires of statutes and rules, apart from their own parent statute. Every tribunal decision is open to scrutiny before a Division Bench of the High Court. The Court said this applies from the date of the judgment.

Don't confuse: judicial review and judicial activism

Judicial activism is a style of using the judicial power. It is not a separate power.

Common mistakes

• Writing that judicial review in India exists only because of case law. Articles 13, 32, 226 and 227 give it in express words.
• Saying an amendment can be struck down for breach of any Fundamental Right. It is tested on the basic structure.
• Saying Chandra Kumar closed down tribunals. They still decide in the first instance.
• Saying Minerva Mills was 4:1 on Article 368. Bhagwati J agreed on Article 368 and dissented on Article 31C.

Apply it

Leading case laws

• Kesavananda Bharati v. State of Kerala (1973)

  Facts. A religious head challenged Kerala land reform laws. The case grew into a challenge to the 24th, 25th and 29th Amendments.

  Principle. Several Judges hold that the amending power cannot destroy the basic structure. Shelat and Grover, JJ. hold that judicial review is indispensable and integral (para 568).

  Why it matters. It is the source of the basic structure test for amendments.

• Minerva Mills Ltd. v. Union of India (1980)

  Facts. Minerva Mills challenged the nationalisation of its textile undertaking and the 42nd Amendment's changes to Articles 368 and 31C.

  Principle. Clauses (4) and (5) of Article 368 are void because they give Parliament an unlimited, unreviewable power. By 4:1, the extension of Article 31C is also struck down.

  Why it matters. It shows that a valid amendment can still be struck down.

• I.R. Coelho v. State of Tamil Nadu (2007)

  Facts. Two laws placed in the Ninth Schedule after 1973 were challenged. A five-Judge Bench referred the question to nine Judges.

  Principle. Ninth Schedule laws made on or after 24 April 1973 can be tested on the basic structure. There is no absolute immunity under Article 31B.

  Why it matters. It keeps judicial review alive over the Ninth Schedule.

• L. Chandra Kumar v. Union of India (1997)

  Facts. A seven-Judge Bench heard appeals and petitions on the powers of tribunals under Articles 323A and 323B, and reconsidered Sampath Kumar.

  Principle. Judicial review under Articles 226, 227 and 32 is part of the basic structure. Tribunal decisions go to a High Court Division Bench.

  Why it matters. Tribunals supplement the High Courts. They do not replace them.

How to write this answer in the exam

Key points to remember

• Judicial review: courts test laws and executive acts against the Constitution.
• Express textual basis: Articles 13, 32, 226, 227, 131, 136, 245, 246.
• Reviewable: legislation, executive action, constitutional amendments (basic structure only).
• Minerva Mills (1980): Article 368(4) and (5) void; a limited amending power is a basic feature.
• I.R. Coelho (2007): Ninth Schedule laws after 24 April 1973 can be tested on the basic structure.
• L. Chandra Kumar (1997): High Court review under Articles 226 and 227 cannot be excluded; tribunals are supplemental.
• Article 32 is a Fundamental Right; Article 226 is a High Court power.

Quick self-test

Related topics

• Nature and Salient Features of Indian Constitution
• General Principles relating to Fundamental Rights(Art.13)
• Definition of State