7. Doctrine of Judicial Review

This is the 7th and final post in Constitutional Law-I, Unit 2 — Posts 1 to 6 covered the Constitution's nature, its Preamble, its territory, citizenship, the general principles of Fundamental Rights, and the definition of "State"; this post covers the doctrine of judicial review, the mechanism that actually enforces everything discussed across this Unit.

The Problem This Topic Solves

A Constitution that declares certain rights supreme and certain limits on government power is only as strong as the mechanism enforcing it. Without some institution empowered to check whether a law or government action actually conforms to the Constitution, the Constitution's supremacy — the very first federal feature discussed in Post 1 of this Unit — would be nothing more than a written promise, unenforceable in practice. Judicial review is that enforcing mechanism: the power of courts to examine the constitutional validity of legislative and executive action, and to strike down what exceeds constitutional limits. This is why judicial review is not just one more topic in this Unit, but the doctrine that gives legal force to nearly everything discussed in Posts 1 through 6.

What Is Judicial Review?

Judicial review is the power of courts to examine the constitutionality of legislative enactments and executive orders, and to declare them void if they are found to be inconsistent with the Constitution. It rests on the basic premise, discussed in Post 1 of this Unit, that the Constitution is the supreme law of the land, and that any organ of government — including the legislature — that acts beyond the limits the Constitution sets is acting without legal authority to that extent.

The Constitutional Basis of Judicial Review in India

Six constitutional pillars of judicial review:

• Article 13 — Laws inconsistent with Part III are void to that extent
• Article 32 — Right to move the Supreme Court directly for Fundamental Rights, via writs
• Article 226 — High Court writs — Fundamental Rights plus "any other purpose"
• Article 227 — High Court's general power of superintendence over courts and tribunals
• Articles 131–136 — Supreme Court's original and appellate jurisdiction
• Articles 245–246 — Legislative competence under the Seventh Schedule's Lists

1. Article 13 — declares that any law inconsistent with Part III is void to the extent of that inconsistency, examined in detail in Post 5 of this Unit; this is the substantive foundation of judicial review over Fundamental Rights.

2. Article 32 — guarantees the right to move the Supreme Court directly for the enforcement of Fundamental Rights, empowering the Court to issue writs (habeas corpus, mandamus, prohibition, quo warranto, certiorari) for that purpose. Dr. B.R. Ambedkar's description of this Article as "the heart and soul" of the Constitution, already noted in Post 5, reflects exactly how central it is to judicial review's practical operation.

3. Article 226 — empowers every High Court to issue the same range of writs, not only for enforcing Fundamental Rights but "for any other purpose" as well, making the High Courts' writ jurisdiction broader in scope than the Supreme Court's under Article 32, even though both operate within their own respective territorial limits.

4. Article 227 — gives every High Court a general power of superintendence over all courts and tribunals within its territorial jurisdiction, a supervisory tool distinct from but related to judicial review proper.

5. Articles 131 to 136 — establish the Supreme Court's original jurisdiction (disputes between the Union and States, or between States) and appellate jurisdiction, both of which routinely involve testing the constitutional validity of laws and government action.

6. Articles 245 and 246 — define the legislative competence of Parliament and State Legislatures with reference to the Seventh Schedule's three Lists (studied as part of the federal features in Post 1); a law made outside this competence is void, and testing this is itself a form of judicial review.

India vs. the United States — Where Judicial Review Actually Came From

Judicial review as a modern constitutional concept originates from the United States, where the U.S. Supreme Court, in Marbury v. Madison (1803), asserted for itself the power to declare an Act of Congress unconstitutional — a power the American Constitution does not expressly grant anywhere in its text, but which the Court held was implicit in a written, supreme Constitution. India's position is different and, in an important sense, stronger on paper: judicial review is not merely inferred by courts, but expressly and repeatedly built into the constitutional text itself, through Articles 13, 32, 131 to 136, 226, 227, 245, and 246, discussed above. This distinction — American judicial review as a judicially-asserted implication, Indian judicial review as an express textual guarantee — is a frequently tested comparative point.

Scope of Judicial Review in India — What Can Actually Be Reviewed

• 1. Ordinary Legislation — Tested against Part III and against legislative competence under Articles 245–246
• 2. Executive/Administrative Action — Reviewed for constitutionality, excess of statutory authority, or breach of natural justice
• 3. Constitutional Amendments — Reviewable only for damaging the basic structure (Kesavananda Bharati)

1. Ordinary legislation — any Act of Parliament or a State Legislature can be tested against Part III (Fundamental Rights) and against legislative competence under Articles 245–246.

2. Executive and administrative action — orders, rules, regulations, and other executive decisions can be reviewed for constitutionality, for exceeding statutory authority, or for violating principles of natural justice.

3. Constitutional amendments — even an amendment passed under Article 368 can be judicially reviewed, but only on the narrow ground of whether it damages or destroys the Constitution's basic structure, per Kesavananda Bharati v. State of Kerala (1973), discussed fully in Post 1 of this Unit — Parliament's amending power itself is subject to judicial review.

Judicial Review as Part of the Basic Structure Itself

If Parliament could, by ordinary constitutional amendment, remove or weaken the courts' power of judicial review, every other basic structure protection recognized in Kesavananda Bharati would become practically unenforceable — there would be no institution left to check whether that very amendment itself crossed the line. The Supreme Court closed this exact gap in the case below.

Minerva Mills v. Union of India (1980) — Judicial Review Cannot Itself Be Amended Away

Judicial Review of Tribunals — Can Parliament Exclude the High Courts?

A related question arose when Parliament began setting up specialized administrative tribunals (for service matters, tax disputes, and similar areas) and sought to exclude the High Courts' writ jurisdiction over these matters entirely, routing appeals directly to the Supreme Court instead. In S.P. Sampath Kumar v. Union of India (1987), the Supreme Court initially upheld this exclusion, provided the tribunals themselves offered an effective, equally competent substitute for High Court review. A decade later, the question was revisited more fundamentally.

L. Chandra Kumar v. Union of India (1997) — High Court Judicial Review Cannot Be Excluded

• Judicial review is the power of courts to examine and strike down legislative or executive action that is inconsistent with the Constitution
• Its constitutional basis in India is express and textual — Articles 13, 32, 226, 227, 131–136, 245, and 246 — unlike the United States, where the U.S. Supreme Court asserted this power for itself in Marbury v. Madison (1803) without any express constitutional text granting it
• Judicial review in India extends to ordinary legislation, executive/administrative action, and even constitutional amendments (on the narrow ground of basic structure violation)
• Minerva Mills v. Union of India (1980): judicial review is itself part of the Constitution's basic structure and cannot be excluded or destroyed even by a constitutional amendment
• L. Chandra Kumar v. Union of India (1997): the High Courts' judicial review power under Articles 226/227 cannot be completely excluded by routing disputes only to tribunals; tribunal decisions remain subject to High Court scrutiny

Grounds for Judicial Review

Legislative action is typically reviewed on two broad grounds: lack of legislative competence (a law made on a subject outside the relevant List under Articles 245–246) and violation of Fundamental Rights or other substantive constitutional provisions. Executive and administrative action is reviewed on a related but distinct set of grounds — illegality (acting beyond statutory authority), procedural impropriety (violating natural justice, such as denying a fair hearing), and irrationality (a decision so unreasonable that no reasonable authority could have arrived at it, commonly referred to as "Wednesbury unreasonableness"). These administrative-law grounds are studied in far more depth outside this subject; this post covers only enough to place them within the wider judicial review framework.

Judicial Review vs. Judicial Activism — A Common Point of Confusion

Judicial review and judicial activism are related but distinct ideas, frequently confused in exam answers. Judicial review is the settled, constitutionally sanctioned power to test the validity of laws and government action against the Constitution — a routine, expected judicial function. Judicial activism refers to courts going further, actively shaping policy or filling legislative gaps through their judgments, often in areas where the legislature has been slow or silent (for instance, through detailed guidelines issued in the absence of legislation). Judicial review is exercised through activism sometimes, but the two terms are not synonyms — every act of judicial review is not "activism," and activism is best understood as a particular style or degree of exercising the judicial function, not the function itself.

• S.P. Sampath Kumar v. Union of India (1987) initially allowed tribunals to exclude High Court jurisdiction, provided they were an adequate substitute — L. Chandra Kumar (1997) later closed this gap by holding High Court review cannot be excluded at all
• "Wednesbury unreasonableness," a ground for reviewing administrative action, takes its name from an English case (Associated Provincial Picture Houses v. Wednesbury Corporation, 1948) and has been absorbed into Indian administrative law as one of the standard grounds of review
• Judicial review of an ordinary law and judicial review of a constitutional amendment operate on different standards — an ordinary law can be struck down simply for being inconsistent with Part III, while a constitutional amendment can only be struck down for damaging the basic structure, a narrower and more demanding test

Article 32 vs. Article 226 — At a Glance

A Practical Example

Suppose Parliament passes a constitutional amendment under Article 368 declaring that, from now on, no court may examine the validity of any future constitutional amendment on any ground whatsoever. Is this amendment itself valid? No — this is almost exactly the situation the Supreme Court struck down in Minerva Mills: an amendment that tries to insulate the amending power from all judicial review destroys judicial review itself, which is part of the basic structure. Compare this with a State law creating a specialized tribunal for service disputes and directing all such disputes to that tribunal instead of the High Court. Is that valid? Largely yes — tribunals can validly handle such disputes as the first forum — but per L. Chandra Kumar, the law cannot validly bar an aggrieved party from later seeking review of the tribunal's decision before the jurisdictional High Court under Articles 226/227.

Quick Revision Points

• Judicial review: the power of courts to test legislative and executive action against the Constitution and strike down what is inconsistent with it
• Constitutional basis in India: Articles 13, 32, 226, 227, 131–136, 245, 246 — express and textual, unlike the U.S., where Marbury v. Madison (1803) established it through judicial assertion alone
• Judicial review covers ordinary legislation, executive/administrative action, and constitutional amendments (only for basic structure violations, per Kesavananda Bharati, Post 1 of this Unit)
• Minerva Mills v. Union of India (1980): judicial review is itself part of the basic structure and cannot be excluded even by constitutional amendment; Fundamental Rights and Directive Principles must be harmoniously balanced
• S.P. Sampath Kumar (1987) allowed tribunals to exclude High Court review if an adequate substitute existed; L. Chandra Kumar v. Union of India (1997) later held High Court review under Articles 226/227 can never be fully excluded
• Grounds for review: lack of legislative competence and Fundamental Rights violations (legislative action); illegality, procedural impropriety, and irrationality/Wednesbury unreasonableness (administrative action)
• Judicial review and judicial activism are related but distinct — review is the settled power itself; activism describes a more expansive style of exercising it
• Article 32 (Supreme Court, Fundamental Rights only, itself a Fundamental Right) vs. Article 226 (High Courts, Fundamental Rights plus "any other purpose," not itself a Fundamental Right)