Judicial Review: The Judiciary’s Guard Against Constitutional Violations

When government bodies exercise their powers, who ensures they do not overstep constitutional boundaries? In India, this critical oversight function belongs to the judiciary through a mechanism known as judicial review. This power allows courts to examine whether legislative acts and executive actions conform to the Constitution, serving as a fundamental check against potential governmental overreach.

Understanding judicial review 🔗

Judicial review refers to the power of the judiciary to examine the constitutionality of legislative enactments and executive orders issued by both central and state governments. When courts find such laws or actions violating constitutional provisions, they can declare them null and void. The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246, making it one of the checks and balances in the separation of powers.

This doctrine serves a dual purpose. First, it legitimizes government action by providing constitutional validation. Second, it protects the Constitution against undue encroachment by governmental organs. The Supreme Court has recognized judicial review as a basic feature of the Constitution, meaning it cannot be curtailed even through constitutional amendments.

Constitutional foundations in India 🔗

While the phrase “judicial review” does not appear explicitly in the Indian Constitution, multiple provisions establish this power. Article 13 declares that any law inconsistent with or in derogation of Fundamental Rights shall be void. This provision forms the bedrock for challenging legislation that violates basic rights.

Article 32 guarantees the right to move the Supreme Court for enforcement of fundamental rights, often called the “heart and soul” of the Constitution by Dr. B.R. Ambedkar. Similarly, Article 226 empowers High Courts to issue writs for enforcing fundamental rights and for other purposes.

Articles 131 through 136 grant the Supreme Court jurisdiction over various disputes, including those between the center and states, constitutional matters, and civil and criminal appeals. Article 246, along with Articles 251 and 254, addresses legislative competence and resolves conflicts between central and state laws by establishing that central laws prevail when inconsistencies arise.

Scope and grounds for review 🔗

Indian courts can review the constitutional validity of legislative or executive actions on three primary grounds. First, when such actions infringe upon Fundamental Rights enshrined in Part III of the Constitution. Second, when they exceed the competence of the authority that framed them. Third, when they contradict other constitutional provisions.

The scope of judicial review in India is narrower than in the United States. This difference stems from the constitutional language adopted. The American Constitution provides for “due process of law,” while India follows “procedure established by law.” Under the American system, courts examine laws on both substantive grounds and procedural reasonableness. Indian courts, however, primarily focus on substantive grounds, determining whether actions fall within authorized powers rather than assessing their reasonableness or policy implications.

Three dimensions of judicial review 🔗

Judicial review operates across three distinct dimensions. Legislative review examines whether laws passed by Parliament or state legislatures comply with constitutional provisions. Executive review scrutinizes administrative actions to ensure they conform to statutory mandates and constitutional limits. Judicial review of past decisions allows courts to correct errors or clarify legal principles established in earlier judgments.

The basic structure doctrine 🔗

The landmark case of Kesavananda Bharati v. State of Kerala in 1973 fundamentally shaped judicial review in India. The Supreme Court, in a narrow 7-6 decision, established that while Parliament possesses wide powers to amend the Constitution, it cannot destroy or alter the Constitution’s basic structure.

Justice Hans Raj Khanna propounded that certain fundamental features cannot be amended, including the supremacy of the Constitution, rule of law, independence of the judiciary, separation of powers, federalism, and secularism. This doctrine ensures that constitutional amendments themselves remain subject to judicial scrutiny.

The Court held that judicial review is an integral part of the basic structure and cannot be taken away by Parliament through constitutional amendments. Subsequent cases like Indira Nehru Gandhi v. Raj Narain in 1975 and Minerva Mills v. Union of India in 1980 reinforced this principle, explicitly identifying judicial review as protected by the basic structure doctrine.

Evolution through landmark judgments 🔗

Several key cases have shaped the contours of judicial review in India. In Golaknath v. State of Punjab (1967), the Supreme Court initially ruled that Parliament lacked authority to amend Fundamental Rights. The 24th Amendment reversed this position, but Kesavananda Bharati later refined it through the basic structure doctrine.

The I.R. Coelho v. State of Tamil Nadu case in 2007 addressed judicial review of laws placed in the Ninth Schedule. The Court ruled that laws included in the Ninth Schedule after April 24, 1973 could be subject to judicial review if they violate the basic structure. This decision prevented blanket immunity for laws from constitutional scrutiny.

In Vishaka v. State of Rajasthan (1997), the Supreme Court demonstrated judicial review’s protective function by ruling that workplace sexual harassment violates women’s fundamental rights, issuing guidelines for prevention and redressal before legislation existed.

Maintaining constitutional supremacy 🔗

Judicial review serves as the guardian of constitutional supremacy. It ensures that no law or executive action can override the Constitution’s provisions. This function becomes particularly important in a federal system like India, where judicial review helps maintain the delicate balance between central and state powers.

By adjudicating disputes regarding division of powers, courts prevent encroachment by either level of government into the other’s domain. The Constitution grants powers to both union and state legislatures, limiting Parliament’s competence to subjects within its jurisdiction while protecting state autonomy within their spheres.

Protection of fundamental rights 🔗

Perhaps the most visible function of judicial review lies in protecting individual liberties. When legislative or executive actions threaten fundamental rights, citizens can directly approach the Supreme Court under Article 32 or High Courts under Article 226. Courts scrutinize challenged actions against constitutional guarantees, striking down those that fail to meet constitutional standards.

This protective function extends beyond individual cases. Through public interest litigation and expansive interpretation of fundamental rights, courts have developed jurisprudence addressing systemic violations affecting vulnerable populations, from bonded laborers to victims of custodial violence.

Checking governmental power 🔗

The separation of powers principle requires each governmental branch to operate within constitutional limits. Judicial review operationalizes this principle by providing a mechanism to challenge overreach. When the legislature passes laws exceeding its competence or the executive issues orders beyond statutory authorization, courts can intervene.

This checking function prevents concentration of power in any single branch. The Supreme Court established that separation of powers is an element of the Constitution protected by the basic structure doctrine, where judicial review serves as one of the checks and balances in this system.

However, courts exercise this power with restraint. They generally avoid interfering with policy matters or questioning legislative wisdom. The focus remains on constitutional validity rather than political desirability, maintaining respect for democratic decision-making while ensuring constitutional compliance.

Limitations and challenges 🔗

Despite its significance, judicial review faces certain constraints. Courts cannot initiate review on their own; someone must bring a case challenging governmental action. The process can be time-consuming and expensive, potentially delaying resolution of important issues and creating court backlogs.

Critics argue that judicial review allows unelected judges to override decisions made by elected representatives, raising democratic legitimacy concerns. Others worry about judicial overreach, where courts might exceed their interpretive role and venture into policy-making.

The doctrine of separation of powers itself limits judicial review. Courts must respect legislative and executive functions, intervening only when actions clearly violate constitutional provisions. Judicial restraint becomes necessary to maintain institutional balance and public confidence in all governmental branches.

Impact on democratic governance 🔗

Judicial review strengthens democracy by ensuring accountability and transparency. Government decisions become subject to public scrutiny through court proceedings, creating mechanisms for citizens to challenge arbitrary or unconstitutional actions. This accountability function promotes good governance and protects minority rights against majoritarian excesses.

The doctrine prevents tyranny by limiting governmental power. By striking down unconstitutional laws and actions, courts safeguard against authoritarian tendencies that might emerge in any democracy. This protective function becomes especially critical during emergencies or periods of political tension when normal democratic safeguards might weaken.

At the same time, effective judicial review requires a delicate balance. Courts must exercise their powers vigorously enough to protect constitutional values but with sufficient restraint to respect democratic processes. Finding this balance remains an ongoing challenge in India’s constitutional journey.

Contemporary relevance 🔗

As India evolves, judicial review continues adapting to address new challenges. Courts increasingly confront questions involving technology, privacy, environmental protection, and social justice that the Constitution’s framers could not have anticipated. Through creative interpretation while remaining rooted in constitutional principles, judicial review enables the Constitution to remain a living document responsive to changing societal needs.

Recent cases have expanded the scope of fundamental rights, recognizing privacy as inherent to Article 21’s right to life and personal liberty. Courts have addressed issues ranging from electoral reforms to environmental protection, demonstrating judicial review’s flexibility in confronting contemporary challenges while maintaining constitutional fidelity.

What do you think? How effectively does judicial review balance the need for governmental flexibility with constitutional protection? Should courts exercise more active oversight of legislative and executive actions, or does the current balance appropriately respect democratic decision-making?

References

1. https://www.nextias.com/blog/judicial-review/
2. https://en.wikipedia.org/wiki/Judicial_review_in_India
3. https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/judicial-review-under-coi
4. https://www.lingayasvidyapeeth.edu.in/judicial-review-power-of-the-supreme-court-of-india/
5. https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
6. https://blog.ipleaders.in/kbharatikerala/
7. https://vajiramandravi.com/upsc-exam/kesavananda-bharati-case/
8. https://chahalacademy.com/judicial-review
9. https://www.legalserviceindia.com/legal/article-746-judicial-review-in-india.html
10. https://corporate.cyrilamarchandblogs.com/2017/09/kesavananda-bharati-v-state-kerala-basic-structure-doctrine/