Judicial Review

Imagine you’re standing in a long queue at a ration shop, but the shopkeeper refuses to give you your entitled food grains unless you pay a bribe. Or you read in the newspaper that the government has just passed a law that bans all protests in your city—even peaceful ones. In moments like these, can the Constitution protect you? The answer lies in the power of judicial review, the judiciary’s quiet but mighty shield against injustice. It is the reason ordinary citizens like you can walk into court and ask judges to strike down laws or actions that trample on the Constitution.

What is Judicial Review? A Student’s Everyday Analogy

Imagine you’re playing a friendly cricket match in your colony park. Everyone agreed to follow the rules written in the club’s rulebook before the game started. One over, your friend declares: “No-balls don’t count today!” You protest: “That’s not in the rulebook!” The coach, who isn’t playing but knows the rules, listens and says, “You’re right—your friend’s idea changes the game unfairly.” The coach’s decision restores the original rules, and play continues fairly. In this scene, the coach did judicial review: checking whether a new rule fits the agreed rulebook and stopping anything that doesn’t. In India’s democracy, the Supreme Court plays the role of that coach. It reviews laws passed by Parliament or actions taken by the government to see if they follow the Constitution—the country’s ultimate rulebook. If a law or action violates the Constitution, the Court can strike it down, just like the coach stopped the unfair “no-ball” rule. A real-life example is the 2017 Right to Privacy case. The government had argued that privacy wasn’t a fundamental right, but the Supreme Court reviewed its claim against the Constitution and ruled that privacy is a fundamental right. This decision protected citizens’ personal data and personal choices from government overreach, much like the coach protected fair play in your cricket match.

Where Does Judicial Review Come From? Decoding Articles 13, 32, and 226

Imagine you’re a small shop owner in Delhi whose land is suddenly declared “public purpose” without proper notice. The bulldozers arrive the next morning, but you have no way to stop them. If this sounds unfair, you’re already sensing why judicial review exists: it lets courts check whether the government’s actions obey the Constitution, even when the exact words “judicial review” never appear in the text. That power is quietly stitched into three key Articles—13, 32, and 226—so that rights aren’t just promises on paper.

The roots begin with Article 13, which declares that any law inconsistent with fundamental rights is void. Think of it as a constitutional “delete” button: if Parliament passes a rule that takes away your freedom of speech, a court can strike it down because Article 13 says such laws simply don’t count. This is the first brick in the foundation, telling us that Parliament’s power isn’t absolute.

Next, Article 32 acts like a Supreme Court hotline for rights violations. It lets you directly approach the Supreme Court if your fundamental rights are breached, whether through an unconstitutional law or an unfair executive order. In 1981, a group of undertrial prisoners in Bihar filed a petition under Article 32 (hence the famous Sunil Batra v. Delhi Administration case) after inhumane prison conditions violated their right to dignity under Article 21. The Court responded by ordering reforms, showing how Article 32 turns constitutional text into real-world protection.

Finally, Article 226 empowers every High Court to issue similar writs within its state. If you’re in Mumbai and a municipal officer seizes your goods without due process, the Bombay High Court can issue an order to stop the action immediately. Together, these Articles form a three-layer shield: Article 13 stops bad laws, Article 32 provides Supreme Court relief, and Article 226 delivers High Court justice—all without ever using the phrase “judicial review.” Their absence in the text doesn’t weaken the power; it simply keeps the focus on the Constitution’s living promise: no one, not even the government, is above the law.

Why Do We Need Judicial Review? Protecting Rights, Democracy, and Federal Balance

As students, you might wonder why judicial review is crucial in a country like India. The answer lies in its five core objectives, which are essential for protecting individual rights, promoting democracy, and maintaining federal balance. Let's break down these objectives and explore how they impact your daily life. Firstly, judicial review ensures that the government does not overstep its authority, thereby protecting individual rights. For instance, the Indian Supreme Court has consistently upheld the right to freedom of speech and expression, allowing students like you to express your opinions and engage in public debates. Secondly, judicial review promotes democracy by preventing the concentration of power in one branch of government. This means that the judiciary can check the actions of the executive and legislative branches, ensuring that they do not act unconstitutionally. A notable example is the Supreme Court's ruling in the Kesavananda Bharati case, which limited the power of Parliament to amend the Constitution. Thirdly, judicial review maintains federal balance by resolving disputes between the center and states. This is particularly important in a diverse country like India, where states have different needs and priorities. For example, the Supreme Court has intervened in disputes between the center and states over issues like river water sharing and resource allocation. Fourthly, judicial review upholds the rule of law by ensuring that government actions are in accordance with the Constitution and laws. This means that the government cannot act arbitrarily or discriminate against certain groups. Lastly, judicial review provides a check on administrative actions, preventing government agencies from abusing their power. This is essential for promoting transparency and accountability in governance. In conclusion, judicial review is vital for protecting individual rights, promoting democracy, maintaining federal balance, upholding the rule of law, and providing a check on administrative actions. These objectives are not just theoretical concepts but have real-world implications for students like you, as they impact your daily life and shape the country's governance structure.

Basic Structure Doctrine: The Supreme Court’s Unbreakable Shield

The Basic Structure Doctrine is a landmark concept in Indian constitutional law that has far-reaching implications for the country's governance and democratic framework. At its core, this doctrine asserts that certain fundamental principles and features of the Constitution are inviolable and cannot be altered or destroyed, even by Parliament. One such unassailable feature is judicial review, which empowers the judiciary to examine and strike down laws and government actions that violate the Constitution. The Supreme Court of India has consistently upheld the importance of judicial review, recognizing it as an essential component of the Constitution's basic structure.

A pivotal moment in the evolution of this doctrine came with the Kesavananda Bharati case (1973), where the Supreme Court ruled that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. This precedent has since been reaffirmed in numerous judgments, solidifying judicial review as a bulwark against legislative and executive overreach. For instance, if a law passed by Parliament is deemed to infringe upon fundamental rights or principles enshrined in the Constitution, the Supreme Court can invoke judicial review to declare such a law null and void. This not only safeguards individual rights but also ensures that the rule of law prevails, maintaining the delicate balance of power among the branches of government.

In the context of India, the practical application of judicial review can be seen in cases where the Supreme Court has intervened to protect the environment, uphold social justice, and enforce accountability in governance. For example, the Court's directives to reduce pollution in the Ganges River or its orders to ensure the implementation of social welfare schemes demonstrate how judicial review acts as a powerful tool for promoting the public interest and upholding constitutional values. By declaring judicial review an integral part of the Constitution's basic structure, the Supreme Court has underscored its commitment to defending the nation's democratic ethos and the principles of justice, equality, and liberty that underpin it.

Procedural vs. Substantive Review: What’s the Difference and Why Does It Matter?

When discussing judicial review, it's essential to understand the difference between procedural review and substantive review. Procedural review focuses on whether the government or administrative body followed the correct procedures when making a decision, whereas substantive review examines the actual decision itself, considering whether it is reasonable and just. To illustrate the significance of this distinction, let's consider a real-world example from India. Suppose a company, like Tata Motors, challenges a government regulation that they believe unfairly restricts their business operations. In court, the judges might apply procedural review to check if the government followed the proper channels and procedures when creating the regulation. However, if the court applies substantive review, they would delve deeper into the regulation's content, assessing whether it is reasonable, nondiscriminatory, and respects the company's rights.

The approach used can significantly impact citizens' rights in court. The 'procedure established by law' approach, which is more commonly used in India, emphasizes the importance of following established procedures. This means that as long as the government or administrative body has followed the correct procedures, the court is less likely to intervene, even if the decision seems unfair. On the other hand, the 'due process' approach, which is prevalent in countries like the United States, places more emphasis on the protection of individual rights and freedoms. Under this approach, the court would not only examine the procedures followed but also consider whether the decision is fair and reasonable, providing stronger protection for citizens' rights.

To further understand the implications of these approaches, consider the following key points:

• Procedure established by law focuses on the process, ensuring that decisions are made in accordance with established rules and regulations.
• Due process focuses on the protection of individual rights and freedoms, ensuring that decisions are fair, reasonable, and do not unfairly restrict citizens' rights.

By recognizing the difference between procedural and substantive review, and understanding how each approach affects the protection of citizens' rights, we can better appreciate the role of judicial review in ensuring that the government and administrative bodies act in a fair and just manner.

Judicial Review of Executive Actions: Can the Government Just Do Whatever It Wants?

Imagine the government passes an executive order tomorrow banning all social media in India “to protect public order.” Without judicial review, that order would take effect immediately—no debate, no evidence test, no chance for citizens to challenge it. That’s why the Constitution gives the Supreme Court and High Courts the power to examine whether executive actions—orders, ordinances, or even routine administrative decisions—are within the bounds of the Constitution. In plain terms, courts ask: “Is the government acting fairly, legally, and within its granted powers?” If not, the action can be struck down, protecting citizens from arbitrary or unconstitutional power.

Take the 2017 Right to Privacy case (K.S. Puttaswamy v. Union of India). The government had set up Aadhaar, a biometric identity system, and made it mandatory for services like bank accounts and phone connections. Many Indians saw this as an overreach—why should the government collect fingerprints and iris scans of every citizen? The Supreme Court stepped in and examined whether the Aadhaar scheme violated the fundamental right to privacy. After a historic 9-judge bench ruling affirming privacy as a fundamental right, the Court then reviewed Aadhaar’s architecture and struck down parts that allowed private companies unrestricted access to biometric data. This wasn’t about disagreeing with the policy’s goal, but about ensuring the government’s means stayed within constitutional limits. The judgment sent a clear message: no executive action is above judicial scrutiny, even when it involves national security or welfare schemes.

Judicial Review of Legislative Acts: When Can Courts Strike Down Laws?

The concept of judicial review is a cornerstone of constitutional law, allowing courts to examine the validity of legislative acts and strike them down if they are found to be unconstitutional. But what are the grounds for such a drastic measure? In India, courts can strike down laws on three primary grounds: ultra vires, violation of fundamental rights, and breach of federalism. Let's explore these grounds with real-world examples. The ultra vires doctrine refers to laws that exceed the legislative power granted to the parliament or state legislatures. For instance, if a state legislature passes a law that interferes with the central government's exclusive powers, such as foreign policy, the courts can declare it ultra vires and strike it down. Violation of fundamental rights is another critical ground. If a law infringes upon individual rights enshrined in Part III of the Constitution, like freedom of speech or equality before the law, courts can intervene. A notable example is the striking down of Section 377 of the IPC, which criminalized homosexuality, as it violated the right to equality and personal liberty. Lastly, a breach of federalism occurs when laws overstep the boundaries between the center and the states, disrupting the balance of power. The courts ensure that each tier of government operates within its constitutional limits, preventing encroachment on the other's domain. Understanding these grounds is essential for grasping how judicial review acts as a check on legislative power, safeguarding the Constitution and the rights of citizens.

Judicial Activism vs. Judicial Restraint: When Should Courts Step In—or Stay Out?

Judicial activism and judicial restraint are two ends of a spectrum that shape how courts engage with laws and governance. At its core, judicial activism empowers courts to step beyond routine interpretation and actively shape policy, often correcting perceived injustices or filling legislative gaps. In contrast, judicial restraint urges courts to defer to elected branches—legislature and executive—unless a law clearly violates constitutional limits, trusting these bodies to resolve societal issues. The balance between the two isn’t just academic; it influences everything from environmental protection to corporate accountability.

Consider India’s 2G Spectrum case (2012), where the Supreme Court canceled 122 telecom licenses, citing corruption and flawed auctions. Here, the judiciary didn’t merely interpret the law—it annulled contracts and dictated policy, a hallmark of activism. Critics argued this overreach bypassed parliamentary authority, while supporters saw it as a necessary check on executive negligence. The case illustrates how courts become the final arbiters when other institutions falter, but also raises questions: when does bold intervention become judicial overreach?

A contrasting example is the Right to Privacy judgment (2017), where the Court expanded constitutional protections without dictating specific policies. Instead of imposing solutions, it set a framework for future laws, embodying restraint. The difference lies in the role of the judiciary: activist courts act as reformers; restrained courts act as referees. Both approaches are vital—one protects citizens when other branches fail, the other preserves democratic accountability. The challenge for students is recognizing when each is appropriate, not just in textbooks, but in real-world dilemmas.

Landmark Cases Made Simple: From Golaknath to Puttaswamy

The concept of Judicial Review has been instrumental in shaping the Indian legal landscape, with several landmark cases contributing to its evolution. One of the earliest and most significant cases is Golaknath vs. State of Punjab (1967), which dealt with the issue of parliamentary supremacy versus judicial review. In this case, the Supreme Court held that Parliament could not amend the Constitution to take away fundamental rights, establishing the foundation for judicial review. Another pivotal case is Kesavananda Bharati vs. State of Kerala (1973), which introduced the doctrine of basic structure, limiting Parliament's power to amend the Constitution. The Minerva Mills vs. Union of India (1980) case further reinforced this doctrine, emphasizing that judicial review is essential to ensure that the government does not overstep its constitutional boundaries. More recently, the Puttaswamy vs. Union of India (2018) case recognized the right to privacy as a fundamental right, underscoring the importance of judicial review in protecting individual rights. Other notable cases, such as SR Bommai vs. Union of India (1994) and Irish Citizenship vs. Union of India (2019), have also contributed to the development of judicial review in India. These cases demonstrate the Supreme Court's role in ensuring that the government remains accountable and that individual rights are protected, making judicial review a cornerstone of Indian democracy.

Can Parliament Override Judicial Review? The Limits of Constitutional Amendments

Imagine Parliament passes a sweeping constitutional amendment that strips courts of the power to review laws. On the surface it looks legal—Parliament is the “amending authority”—yet the moment it touches the courts’ ability to protect citizens, the Constitution itself pushes back. This is not about whether Parliament can change the Constitution; it clearly can. It is about how far that change can go. The Supreme Court has repeatedly told us that while Parliament may amend any article, it cannot alter the Constitution’s “basic structure.” Judicial review—the power of courts to test laws against fundamental rights—has been treated as part of that basic structure. In plain language, Parliament can rewrite almost everything, but it cannot remove the referee that keeps the game fair.

This limit was hammered home in IR Coelho (2007), a real case about laws placed in the Ninth Schedule to escape judicial scrutiny. The Court ruled that even laws shielded in the Ninth Schedule must not violate the basic structure, and judicial review itself is a core strand of that structure. The message is simple: Parliament can innovate, update, or even replace entire parts of the Constitution, yet it cannot use the amending power to emasculate the Constitution’s soul—the capacity of independent courts to stand between citizens and arbitrary state power.

Judicial Review in a Federal System: Centre vs. States—Who Checks Whom?

The concept of judicial review plays a vital role in maintaining the balance of power between the Union and States in a federal system like India. It acts as a check on the Centre's power, preventing it from overstepping its boundaries and encroaching on the rights of the States. In India, the Supreme Court and High Courts have the power of judicial review, which enables them to examine the constitutionality of laws and actions taken by the Centre and States. This power is essential in a federal system, as it ensures that the Centre does not abuse its authority and that the rights of the States are protected.

A classic example of judicial review in action is the case of Kesavananda Bharati vs. State of Kerala (1973), where the Supreme Court struck down certain provisions of the Constitution (Twenty-Fifth Amendment) Act, 1971, which had been enacted by the Centre. The Court held that the Centre's attempt to amend the Constitution was unconstitutional, as it violated the basic structure of the Constitution. This landmark judgment demonstrated the importance of judicial review in checking the Centre's power and maintaining the federal balance.

In another instance, the Supreme Court's decision in the SR Bommai case (1994) highlighted the role of judicial review in preventing the Centre from misusing its powers under Article 356 of the Constitution, which deals with President's rule in States. The Court ruled that the Centre's decision to impose President's rule in a State must be justified and that the Court has the power to review such decisions. This judgment reinforced the notion that judicial review is essential in ensuring that the Centre does not arbitrarily exercise its powers and that the rights of the States are safeguarded.

In conclusion, judicial review is a crucial component of India's federal system, as it prevents the Centre from overreaching its authority and ensures that the rights of the States are protected. Through its power of judicial review, the judiciary acts as a check on the Centre's power, maintaining the delicate balance of power between the Union and States and upholding the principles of federalism.

What If Courts Get It Wrong? Accountability and Checks on the Judiciary

Judges decide matters that shape our daily lives—from whether a new highway can cut through your neighbourhood to whether a government policy violates your fundamental rights. It can feel unsettling to think that a small group of unelected judges might have the final say on such important issues. That’s why the Constitution does not leave the judiciary unchecked; it builds in several powerful ways to hold courts accountable when they get things wrong or overstep their role. First, higher courts act as the most immediate check. If a High Court delivers a judgment that seems unreasonable or legally flawed, the Supreme Court can review and overturn it through appellate jurisdiction. This ensures that legal errors do not become permanent. Second, the impeachment process allows Parliament to remove a Supreme Court or High Court judge for proven misconduct or incapacity—though this is rare and requires a rigorous, two-thirds majority vote in both houses, demonstrating how seriously the system treats judicial accountability. Finally, public scrutiny and legal commentary keep the judiciary grounded. Landmark cases like the 2017 Right to Privacy judgment—where the Supreme Court expanded constitutional protections in response to government surveillance concerns—were shaped not just by judges, but by widespread public debate, media analysis, and expert legal opinions. This openness ensures that judicial decisions remain connected to the values and needs of Indian society, preventing courts from drifting into unchecked power. Accountability isn’t about undermining the judiciary; it’s about making sure justice remains fair, transparent, and truly for the people.

Key takeaways

• Judicial review is the court’s power to examine and, if needed, cancel government actions that break the Constitution.
• It flows from Articles 13, 32, and 226, and is part of the Constitution’s ‘basic structure’—so even Parliament can’t erase it.
• It protects your fundamental rights, keeps democracy alive, and stops the government from becoming too powerful.
• Courts can review laws, executive orders, and administrative decisions—acting as the final guardians of justice.
• Landmark cases like Golaknath, Kesavananda Bharati, and Puttaswamy have shaped how judicial review works today.
• You can use judicial review too—by approaching courts with a PIL if your rights or dignity are violated.

Test yourself

Name the three constitutional articles that form the main source of judicial review in India.

Articles 13, 32, and 226.

What is the ‘basic structure doctrine’ and why is it important for judicial review?

It declares that judicial review is part of the Constitution’s basic structure, making it unalterable even by Parliament.

What is the difference between ‘procedure established by law’ and ‘due process’ in judicial review?

'Procedure established by law' means courts only check if the correct procedure was followed, while 'due process' allows courts to examine fairness and reasonableness of the law itself.

Can Parliament abolish judicial review? Why or why not?

No. The Supreme Court has held that judicial review is part of the Constitution’s basic structure, which Parliament cannot destroy through amendments.

What kind of laws or actions can courts strike down under judicial review?

Laws that violate fundamental rights, exceed legislative competence, or are arbitrary or unreasonable.

How can an ordinary citizen use judicial review to protect their rights?

By filing a Public Interest Litigation (PIL) in the High Court or Supreme Court to challenge unconstitutional actions or laws.

Frequently asked questions

What is judicial review in simple terms?

Judicial review is the power of courts to check whether laws or government actions follow the Constitution, much like a coach ensuring a cricket match adheres to the agreed rulebook. If a law or action violates the Constitution, courts can strike it down.

Where does the power of judicial review come from in the Indian Constitution?

The power is derived from Articles 13, 32, and 226. Article 13 declares void any law inconsistent with fundamental rights, while Articles 32 and 226 allow citizens to directly approach the Supreme Court or High Courts to enforce these rights.

How does Article 13 protect fundamental rights?

Article 13 acts as a constitutional 'delete button' by declaring that any law violating fundamental rights is void. This ensures Parliament’s power is not absolute and rights are not just promises on paper.

What is the difference between Articles 32 and 226?

Article 32 allows citizens to directly approach the Supreme Court for fundamental rights violations, while Article 226 empowers High Courts to issue writs for enforcing rights or other legal purposes within their jurisdiction.