India follows the principle of constitutional supremacy.
The Constitution is the supreme law, and all organs of government derive their powers from it.
Judicial review is one of the principal mechanisms through which constitutional supremacy is enforced.
It enables constitutional courts to examine whether:
Thus:
Constitutional supremacy → Constitutional limits
Judicial review → Enforcement of those limits
Judicial review is the power of courts to examine the constitutional and legal validity of governmental action.
Governmental action may include:
If an action violates the Constitution or exceeds legal authority, the court may grant appropriate relief or invalidate the action to the extent permitted by law.
Judicial review seeks to:
It therefore acts as a:
Constitutional check on State power
The relationship can be understood simply:
Constitution
↓
Supreme law
↓
Government receives constitutional powers
↓
Government must remain within constitutional limits
↓
Courts exercise judicial review
↓
Unconstitutional action can be invalidated
Therefore, judicial review gives practical effect to constitutional supremacy.
India does not follow absolute parliamentary sovereignty.
Parliament is the principal law-making institution, but its authority is derived from and limited by the Constitution.
Therefore:
Parliament → Powerful
but:
Parliament ≠ Constitution
Ordinary legislation must conform to the Constitution.
The Constitution does not contain a single provision titled:
"Power of Judicial Review."
Instead, judicial review emerges from several constitutional provisions and the overall constitutional structure.
Important provisions include:
The power has also been developed through judicial interpretation.
Article 13 is an important constitutional basis for judicial review concerning Fundamental Rights.
It provides that laws inconsistent with Fundamental Rights are subject to constitutional limitations.
It also defines the term "law" broadly for this purpose.
The provision supports the principle that:
Ordinary law cannot override constitutional rights.
Article 32 gives individuals the right to approach the Supreme Court for enforcement of Fundamental Rights.
The Supreme Court can issue appropriate writs.
These include:
Article 32 therefore provides a direct constitutional remedy against violations of Fundamental Rights.
Article 226 gives High Courts power to issue writs.
Its scope is broader than Article 32 because High Courts can issue writs:
Therefore:
Article 32 → Supreme Court
Article 226 → High Courts
High Courts have supervisory jurisdiction over courts and tribunals within their constitutional framework under Article 227.
This supports judicial supervision and helps maintain legal and procedural discipline within the subordinate judiciary.
Judicial review also examines whether a legislature had the constitutional authority to make a particular law.
The Constitution distributes legislative powers between:
through the Seventh Schedule.
If a legislature exceeds its assigned constitutional competence, the law may be challenged.
This is known as:
Judicial review of legislative competence
Article 245 defines the territorial extent of laws made by:
Legislation must operate within the constitutional framework.
Courts can examine whether legislative action falls within constitutional authority.
Article 246 distributes legislative competence between Parliament and State Legislatures with reference to the:
Judicial review helps determine whether a particular legislature has acted within its constitutional field.
Under:
Article 254
when a valid Parliamentary law and a State law dealing with a Concurrent List matter conflict, the Parliamentary law generally prevails, subject to constitutional exceptions.
Courts can determine whether a genuine conflict exists and whether the relevant laws are constitutionally valid.
Judicial review is not limited to legislation.
Courts can review executive and administrative actions for issues such as:
The purpose is not normally to substitute judicial policy preferences for executive decisions.
It is to ensure:
Legality + Constitutional compliance
Administrative authorities exercise significant powers in modern government.
Judicial review helps ensure that administrative discretion does not become arbitrary.
Courts may examine whether:
Parliament has constitutional power to amend the Constitution under:
Article 368
However, that power is not unlimited.
The Supreme Court developed the:
Basic Structure Doctrine
which holds that Parliament cannot amend the Constitution in a manner that destroys its basic structure.
Therefore:
Constitutional amendment → Reviewable within basic-structure limits
Detailed treatment of the doctrine belongs in the separate Basic Structure Doctrine chapter.
The doctrine was established in:
Kesavananda Bharati v. State of Kerala (1973)
The Supreme Court held that Parliament's amending power is broad but cannot destroy the Constitution's basic structure.
This transformed judicial review of constitutional amendments.
The Supreme Court has identified several features as part of the basic structure through different judgments.
Examples include:
The exact list is not closed.
Judicial review itself has been recognised as an important element of the Constitution's basic structure.
This means Parliament cannot use the amendment power to completely eliminate meaningful judicial review.
The principle protects:
Constitutional supremacy
from being undermined through constitutional amendment.
In:
Shankari Prasad v. Union of India (1951)
the Supreme Court upheld Parliament's power to amend Fundamental Rights through constitutional amendment.
The Court initially distinguished constitutional amendments from ordinary "law" for Article 13 purposes.
In:
Sajjan Singh v. State of Rajasthan (1965)
the Supreme Court continued the earlier approach and upheld Parliament's amending power.
However, concerns about the extent of Parliament's power began to emerge more strongly.
In:
I.C. Golaknath v. State of Punjab (1967)
the Supreme Court held that Parliament could not amend Fundamental Rights in the manner then understood by the Court.
The decision significantly restricted Parliament's amending power.
This led to constitutional and political responses, including subsequent amendments.
In:
Kesavananda Bharati v. State of Kerala (1973)
the Supreme Court established the:
Basic Structure Doctrine
Parliament can amend the Constitution extensively, including Fundamental Rights, but cannot destroy its basic structure.
This remains one of the most important constitutional judgments in India.
In:
Indira Nehru Gandhi v. Raj Narain (1975)
the Supreme Court applied basic-structure principles in reviewing a constitutional amendment concerning elections.
The case strengthened the principle that:
Free and fair elections
and:
Rule of Law
are constitutionally significant.
In:
Minerva Mills v. Union of India (1980)
the Supreme Court struck down parts of the 42nd Amendment that attempted to give Parliament extremely broad amending authority.
The Court emphasised:
Limited amending power
and:
Harmony between Fundamental Rights and Directive Principles
The decision reinforced judicial review and the Basic Structure Doctrine.
In:
Waman Rao v. Union of India (1981)
the Supreme Court further developed the relationship between constitutional amendments and the Basic Structure Doctrine.
The Court drew an important temporal distinction concerning laws placed in the Ninth Schedule.
In:
I.R. Coelho v. State of Tamil Nadu (2007)
the Supreme Court held that laws placed in the Ninth Schedule after:
24 April 1973
can be examined against the basic structure doctrine where they damage or destroy basic constitutional features.
This reinforced judicial review over attempts to shield laws from constitutional scrutiny.
The Ninth Schedule was originally created to protect certain laws from challenges based on Fundamental Rights.
However, judicial decisions have established that constitutional protection is not unlimited.
Post-Kesavananda additions can be tested where they violate the basic structure.
Thus:
Ninth Schedule ≠ Complete immunity from judicial review
Judicial review provides an institutional mechanism for enforcing Fundamental Rights.
For example, courts can examine laws or executive actions affecting:
Article 21 has become particularly significant through judicial interpretation.
Article 14 provides:
Equality before law and equal protection of laws.
The Supreme Court has developed the principle that arbitrary State action can violate constitutional equality.
Therefore, judicial review under Article 14 has become an important tool against:
Arbitrariness
The interpretation of Article 21 has expanded significantly.
The Supreme Court has connected personal liberty with requirements of:
This has greatly expanded the constitutional role of judicial review.
India's Constitution distributes powers between Union and States.
Judicial review helps maintain this division.
The Supreme Court can decide:
Thus, judicial review acts as a:
Federal balancing mechanism
Judicial review does not mean that courts govern the country.
India follows:
Checks and balances
rather than an absolute separation of powers.
Makes laws.
Implements laws.
Interprets law and reviews constitutional validity.
Judicial review ensures that the legislature and executive remain within constitutional boundaries.
Judicial review is powerful but not unlimited.
Courts generally do not:
The central question is generally:
Is the action constitutionally or legally valid?
rather than:
Is this the policy the court itself would have chosen?
These concepts should not be confused.
Power to examine legality and constitutionality.
A broader judicial approach involving proactive interpretation or intervention in certain circumstances.
Judicial review is a constitutional function.
Judicial activism is a broader description of judicial approach.
Courts actively examine constitutional validity.
Courts exercise caution in interfering with decisions of elected branches, especially in areas involving legitimate policy choices.
A constitutional court can exercise judicial review while still following judicial restraint.
Judicial review helps prevent:
Majoritarian excess
A temporary political majority cannot simply override constitutional limitations.
This protects:
Thus, judicial review strengthens constitutional democracy.
The relationship can be summarised as:
Constitutional supremacy
↓
Government power is limited
↓
Judicial review
↓
Courts examine government action
↓
Unconstitutional action can be invalidated
↓
Constitution remains supreme
These are not identical.
The Constitution is the highest law.
Would imply that courts possess ultimate authority over all political and constitutional questions.
India is fundamentally based on:
Constitutional supremacy
The judiciary itself derives its powers from the Constitution.
Therefore:
Judicial review serves the Constitution; it does not replace the Constitution.
Parliament is subject to judicial review concerning:
This does not mean Parliament has no legislative freedom.
It means:
Parliamentary power operates within constitutional boundaries.
Executive action can be reviewed where it:
This protects the Rule of Law.
Judicial review also applies to decisions of tribunals within the constitutional framework.
High Courts retain important judicial review and supervisory powers.
The Supreme Court has repeatedly emphasised that constitutional judicial review cannot be completely excluded.
Writ jurisdiction is one of the principal mechanisms through which judicial review is exercised.
Article 32
Article 226
The writ jurisdiction allows courts to provide remedies against unlawful governmental action.
Judicial review:
Judicial review can also raise concerns.
Courts may sometimes be accused of entering areas better handled by elected institutions.
Judges are not directly elected.
Some governmental decisions involve economic, social and technical judgments.
Strong judicial intervention can create tension between judiciary and elected branches.
The constitutional challenge is therefore to maintain:
Judicial independence + Judicial restraint
The Indian model seeks a balance among:
Parliament
↓
Democratic law-making
Executive
↓
Governance
Judiciary
↓
Constitutional review
All three operate under:
The Constitution
This is the essence of constitutional supremacy.
Constitutional control over laws inconsistent with Fundamental Rights.
Supreme Court remedies for Fundamental Rights.
Supreme Court original jurisdiction in specified federal disputes.
Special Leave to Appeal.
High Court writ jurisdiction.
High Court supervisory jurisdiction.
Territorial extent of legislation.
Distribution of legislative powers.
Repugnancy between Parliamentary and State laws.
Constitutional amendment.
Shankari Prasad (1951)
→ Parliament's amendment power upheld.
Sajjan Singh (1965)
→ Earlier approach substantially continued.
Golaknath (1967)
→ Parliament's power to amend Fundamental Rights restricted.
Kesavananda Bharati (1973)
→ Basic Structure Doctrine established.
Indira Gandhi v. Raj Narain (1975)
→ Basic structure applied to constitutional amendment concerning elections.
Minerva Mills (1980)
→ Limited amending power + harmony between FR and DPSP.
Waman Rao (1981)
→ Ninth Schedule and basic structure framework further developed.
I.R. Coelho (2007)
→ Post-24 April 1973 Ninth Schedule laws subject to basic-structure review.
"Judicial review is contained entirely in Article 13."
Incorrect
Article 13 is important, but judicial review arises from multiple constitutional provisions and the constitutional structure.
"Only the Supreme Court exercises judicial review."
Incorrect
High Courts also exercise extensive judicial review.
"Parliamentary laws cannot be reviewed by courts."
Incorrect
They can be reviewed for constitutional validity.
"Judicial review means courts can replace any government policy they dislike."
Incorrect
Judicial review focuses on constitutional and legal validity, not ordinary policy preference.
"The Ninth Schedule provides absolute immunity from judicial review."
Incorrect
Post-24 April 1973 additions can be examined against the Basic Structure Doctrine.
"Parliament cannot amend Fundamental Rights."
Oversimplified
Parliament can amend constitutional provisions, including Fundamental Rights, subject to the Basic Structure Doctrine.
"Judicial supremacy means the judiciary is above the Constitution."
Incorrect
The Constitution remains supreme.
"Basic Structure Doctrine prevents all constitutional amendments."
Incorrect
Parliament can amend the Constitution extensively but cannot destroy its basic structure.
"Judicial review is essential for maintaining constitutional supremacy, but excessive judicial intervention may affect democratic governance. Discuss."
Judicial review enables constitutional courts to examine governmental action against the Constitution and therefore gives practical effect to constitutional supremacy.
Judicial review is not a substitute for democratic governance. It is a constitutional mechanism that ensures democratic institutions themselves operate within constitutional boundaries. Its legitimacy is strongest when courts combine firm protection of constitutional principles with institutional restraint.
Meaning
→ Courts examine governmental action for constitutional and legal validity.
Purpose
→ Enforce constitutional supremacy.
Main institutions
→ Supreme Court + High Courts.
Important Articles
→ 13, 32, 131, 136, 226, 227, 245, 246, 254, 368.
Constitution is supreme
↓
Legislature is limited
↓
Executive is limited
↓
Judiciary interprets and enforces Constitution
Kesavananda Bharati, 1973
↓
Parliament can amend Constitution
↓
But cannot destroy basic structure
1951 → Shankari Prasad
1965 → Sajjan Singh
1967 → Golaknath
1973 → Kesavananda Bharati
1975 → Indira Gandhi v. Raj Narain
1980 → Minerva Mills
1981 → Waman Rao
2007 → I.R. Coelho
Judicial review is the constitutional mechanism through which courts ensure that legislative, executive and other governmental actions remain within the limits of the Constitution, thereby giving practical effect to constitutional supremacy while preserving the balance between judicial authority and democratic governance.
