Judicial Review

What is Judicial Review?

**Judicial review** is the power vested in courts to examine the constitutionality and legality of laws enacted by the legislature and actions taken by the executive. If a law or government action is found to violate the Constitution — particularly fundamental rights — or to exceed the authority granted by law, the court can declare it **void**, **unconstitutional**, or **ultra vires** (beyond the powers of the authority).

In simple terms, judicial review is the mechanism by which courts act as the guardians of the Constitution, ensuring that neither the legislature nor the executive overstep their constitutional boundaries.

Constitutional Basis in India

Judicial review is a fundamental feature of the Indian Constitution, drawing from both the American model (judicial review of legislation) and the British model (judicial review of administrative action).

Key Constitutional Provisions

- **Article 13:** The foundational provision for judicial review of legislation.

- **Article 13(1):** All laws in force immediately before the commencement of the Constitution, insofar as they are inconsistent with fundamental rights, shall be **void** to the extent of such inconsistency.

- **Article 13(2):** The State shall not make any law that takes away or abridges fundamental rights, and any law made in contravention shall be **void** to the extent of the contravention.

- **Article 13(3):** Defines "law" broadly to include ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages having the force of law.

- **Article 32:** Empowers the **Supreme Court** to issue directions, orders, or writs for the enforcement of fundamental rights. Dr. B.R. Ambedkar called this the "heart and soul" of the Constitution.

- **Article 226:** Empowers the **High Courts** to issue writs not only for the enforcement of fundamental rights but also for "any other purpose" — giving them a wider scope of judicial review than the Supreme Court under Article 32.

- **Article 136:** The Supreme Court's **special leave to appeal** power, which can be used to review any order of any court or tribunal in India (except military tribunals).

- **Article 141:** Declares that the law declared by the Supreme Court is binding on all courts within the territory of India.

- **Article 245 read with Article 246:** Distributes legislative competence between Parliament and State Legislatures. Courts review whether a legislature has acted within its assigned field.

Part of the Basic Structure

The Supreme Court in **L. Chandra Kumar v. Union of India (1997) 3 SCC 261** held that judicial review under Articles 32 and 226 is part of the **basic structure** of the Constitution and cannot be curtailed or abrogated even by a constitutional amendment.

Types of Judicial Review

1. Review of Legislative Action

Courts examine whether a law passed by Parliament or a State Legislature:

- Violates any **fundamental right** (Articles 14-32).

- Exceeds the **legislative competence** of the enacting body.

- Has been enacted following the **proper procedure** prescribed by the Constitution.

2. Review of Executive/Administrative Action

Courts examine whether an executive or administrative action:

- Is within the **authority granted by law** (whether it is intra vires).

- Complies with the principles of **natural justice** (right to be heard, rule against bias).

- Is **reasonable and not arbitrary** (Article 14 prohibits arbitrary state action).

- Has been made following the **prescribed procedure**.

3. Review of Constitutional Amendments

In the landmark case of **Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225**, the Supreme Court held that while Parliament has the power to amend the Constitution under Article 368, it **cannot alter the basic structure** of the Constitution. The court retained the power to review constitutional amendments and strike down those that damage the basic structure.

Grounds for Judicial Review

Courts exercise judicial review on the following grounds:

1. **Illegality:** The decision-maker did not have the legal power to make the decision, or acted beyond the scope of their authority.

2. **Irrationality/Unreasonableness:** The decision is so unreasonable that no reasonable authority could have made it (the **Wednesbury** principle, adopted in Indian law).

3. **Procedural impropriety:** The required procedure was not followed, or principles of natural justice were violated.

4. **Violation of fundamental rights:** The law or action infringes upon constitutionally guaranteed rights.

5. **Proportionality:** The action taken is disproportionate to the objective sought (an evolving ground increasingly applied by Indian courts).

6. **Legitimate expectation:** A person had a legitimate expectation of a certain treatment, and the action defeats that expectation without justification.

When Does This Term Matter?

When Fundamental Rights are Threatened

If a law restricts freedom of speech (Article 19(1)(a)), imposes unreasonable restrictions on the right to carry on a trade or business (Article 19(1)(g)), or discriminates on prohibited grounds (Article 15), judicial review is the remedy. Citizens can challenge such laws before the High Court or Supreme Court.

When Government Action is Arbitrary

If a government body acts without authority, denies a person a hearing before taking adverse action, or makes decisions that are manifestly unfair, judicial review through writ petitions allows the affected individual to seek redress.

In Challenging Delegated Legislation

Rules, regulations, and notifications made by the executive under delegated legislative power are subject to judicial review. Courts examine whether such subordinate legislation is within the scope of the parent Act and consistent with constitutional provisions.

During Constitutional Amendments

Even constitutional amendments are subject to judicial review under the basic structure doctrine. If Parliament passes an amendment that undermines the foundational principles of the Constitution — such as democracy, federalism, secularism, or the rule of law — the Supreme Court can strike it down.

Landmark Cases

- **Marbury v. Madison (1803):** The American case that established the concept of judicial review, which influenced Indian constitutional jurisprudence.

- **Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225:** Established the **basic structure doctrine**, holding that Parliament's amending power under Article 368 does not extend to altering the basic features of the Constitution.

- **Minerva Mills v. Union of India (1980) 3 SCC 625:** Reinforced the basic structure doctrine and held that judicial review is itself a basic feature of the Constitution.

- **Maneka Gandhi v. Union of India (1978) 1 SCC 248:** Expanded the scope of judicial review under Article 21, holding that any procedure depriving personal liberty must be "just, fair, and reasonable."

- **I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1:** Held that laws placed in the Ninth Schedule after April 24, 1973 are open to judicial review if they violate the basic structure.

Limitations

Judicial review is not absolute. Indian courts have recognised certain limitations:

- **Political questions doctrine:** Courts generally avoid reviewing policy decisions that are within the exclusive domain of the legislature or executive.

- **Matters of national security:** Courts exercise restraint in reviewing defence and foreign affairs decisions.

- **Ninth Schedule protection:** Laws placed in the Ninth Schedule receive some protection from challenge on grounds of fundamental rights violation (though this was partially rolled back by the I.R. Coelho judgment).

- **Ouster clauses:** Some statutes contain provisions seeking to exclude judicial review, though the courts have consistently held that such clauses cannot completely bar judicial review, especially under Articles 32 and 226.

Frequently Asked Questions

Can the Supreme Court strike down a law passed by Parliament?

Yes. Under Article 13 read with Article 32, the Supreme Court has the power to declare any law void if it violates fundamental rights. Additionally, under the basic structure doctrine, the Court can strike down even constitutional amendments if they alter the basic features of the Constitution.

Is judicial review available against private parties?

Judicial review under Articles 32 and 226 is primarily directed against **state action** — laws and actions of the government and its instrumentalities. However, if a private body exercises functions of a public nature (such as regulatory bodies or entities performing government functions), it may be amenable to judicial review. The test is whether the body performs a "public function" or is an "instrumentality of the state" under Article 12.

What is the difference between judicial review and an appeal?

An **appeal** is a statutory right to have a higher court re-examine the merits of a decision made by a lower court or tribunal. **Judicial review** is not concerned with the merits of the decision itself but with the **legality, procedural fairness, and constitutional validity** of the decision-making process. In an appeal, the court may substitute its own decision; in judicial review, the court typically sets aside the decision and remands it for reconsideration.

Can judicial review be excluded by legislation?

The Supreme Court in **L. Chandra Kumar v. Union of India (1997)** held that judicial review under Articles 32 and 226 is part of the basic structure of the Constitution and **cannot be excluded** by any legislation or constitutional amendment. While a statute may provide alternative remedies or create tribunals, the power of the High Courts and Supreme Court to exercise judicial review remains intact as a constitutional guarantee.