Judicial Review in India: Ensuring Constitutional Validity

Every law passed by Parliament and every order issued by the government must answer to one final authority in India: the Constitution. When a citizen believes a law tramples their rights, they can ask the courts to test that law against the Constitution itself. This power of the judiciary to examine whether legislative and executive actions are constitutionally valid is called judicial review. It is the mechanism that keeps the government within the boundaries set by the Constitution, and it sits at the heart of how Indian democracy stays accountable.

What judicial review actually means 🔗

Judicial review is the power of the judiciary to examine the constitutionality, legality, and validity of laws made by the legislature and actions taken by the executive. If a court finds that a law or government action conflicts with the Constitution, it can declare that law void and unenforceable. In simple terms, no statute and no executive order can survive if it violates the supreme law of the land.

This makes judicial review a core part of the system of checks and balances among the three organs of the state: the legislature, the executive, and the judiciary. Each organ has its own sphere of power, but none can act beyond constitutional limits. The judiciary acts as the guardian that ensures the other two stay within their lanes, upholding the rule of law and protecting citizens from arbitrary use of state power.

Where this power comes from 🔗

Interestingly, the Constitution does not contain a single article that explicitly says “courts can strike down laws.” Instead, this power is derived from several provisions read together. The most important among them are:

• Article 13: Declares that any law inconsistent with or in derogation of fundamental rights shall be void. This is often called the charter for judicial review, as it covers both pre-Constitution and post-Constitution laws.
• Article 32: Empowers the Supreme Court to issue writs for the enforcement of fundamental rights. Dr. B.R. Ambedkar famously called this the “heart and soul” of the Constitution.
• Article 226: Gives the High Courts the power to issue writs, not only for fundamental rights but also for “any other purpose,” making their reach even wider than the Supreme Court in certain respects.
• Articles 245 and 246: Define the legislative competence of Parliament and state legislatures, allowing courts to check whether a law was made by the right authority.

Together, these provisions create a framework where every law and every official action remains answerable to the Constitution. The Supreme Court has even held, in L. Chandra Kumar v. Union of India (1997), that the power of judicial review under Articles 32 and 226 is itself part of the basic structure of the Constitution and cannot be taken away.

Why India differs from the United Kingdom 🔗

To appreciate the importance of judicial review, it helps to compare India with the United Kingdom, the country from which we inherited much of our parliamentary system. In Britain, the guiding principle is parliamentary sovereignty. As the constitutional scholar A.V. Dicey explained, the British Parliament can make or unmake any law, faces no legal distinction between ordinary and constitutional law, and its statutes cannot be declared invalid by the judiciary. In other words, traditional British constitutionalism leaves no room for courts to strike down an Act of Parliament.

India deliberately chose a different path. Instead of parliamentary sovereignty, we follow constitutional supremacy, where the Constitution, not Parliament, holds the highest authority. The framers crafted a careful synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy. The judiciary received the power of judicial review, while Parliament retained the power to amend the Constitution, but only within limits. This is why the Indian Parliament, despite resembling the British Parliament in structure, is not a sovereign body in the absolute sense.

The practical result is significant. An Indian court can invalidate a law passed by Parliament if it violates the Constitution, especially the fundamental rights guaranteed in Part III. A British court traditionally could not. This single difference shapes how power is distributed and how rights are protected in the two systems.

The cases that defined judicial review 🔗

The scope of judicial review in India was not settled overnight. It evolved through a dramatic tug-of-war between Parliament and the Supreme Court over a single question: can Parliament amend any part of the Constitution, including fundamental rights?

The early phase and the Golak Nath turning point 🔗

In the first years after independence, the Supreme Court in Shankari Prasad (1951) and Sajjan Singh (1965) held that Parliament could amend any part of the Constitution, including fundamental rights, using its power under Article 368. The balance then shifted sharply. In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court reversed course and held that Parliament could not curtail or take away fundamental rights through a constitutional amendment. This placed fundamental rights beyond the reach of Parliament’s amending power and set the stage for a direct confrontation.

Parliament responded by passing the 24th Amendment, asserting its power to amend any part of the Constitution, along with the 25th and 29th Amendments aimed at advancing land reforms and limiting certain rights. The conflict between legislative power and judicial protection of rights had reached a breaking point.

Kesavananda Bharati and the basic structure doctrine 🔗

The decisive moment came in Kesavananda Bharati v. State of Kerala (1973). A bench of 13 judges, the largest in Indian judicial history, heard the case over 68 days. In a narrow 7 to 6 verdict, the Court delivered a landmark compromise. It held that Parliament does have wide powers to amend the Constitution under Article 368, and in doing so it overruled Golak Nath. But it added a crucial limitation: Parliament cannot alter or destroy the basic structure of the Constitution.

This is the celebrated basic structure doctrine. While the Court did not give an exhaustive list, it indicated that features such as the supremacy of the Constitution, the rule of law, separation of powers, federalism, secularism, and the independence of the judiciary form the unchangeable core. Most importantly for our topic, the Court held that judicial review itself is part of the basic structure and cannot be taken away by any amendment.

Reinforcing the doctrine 🔗

The doctrine was tested and strengthened soon after. In Indira Nehru Gandhi v. Raj Narain (1975), the basic structure theory was applied for the first time to strike down a constitutional amendment, with free and fair elections recognised as part of the basic structure. In Minerva Mills v. Union of India (1980), the Court reaffirmed that the balance between fundamental rights and directive principles, and the limited nature of Parliament’s amending power, are themselves part of the basic structure. These cases cemented the idea that the Constitution, not any single branch of government, reigns supreme.

Judicial activism and Public Interest Litigation 🔗

Judicial review tells us what courts can do. Judicial activism describes how proactively they choose to do it. Activism refers to the judiciary going beyond the narrow role of simply interpreting law and instead taking an active part in protecting rights and ensuring justice, especially where the legislature or executive has failed to act.

The most powerful instrument of this activism has been Public Interest Litigation (PIL). Traditionally, only a person directly affected by an issue could approach a court, a requirement known as locus standi. PIL relaxed this rule dramatically.

How PIL opened the courtroom doors 🔗

The seeds of PIL were sown in the late 1970s by judges like Justice V.R. Krishna Iyer and Justice P.N. Bhagwati, who were determined to make justice accessible to the poor and marginalised. The major breakthrough came in S.P. Gupta v. Union of India (1981), also known as the Judges’ Transfer Case, where the Supreme Court ruled that any public-spirited person acting in good faith could approach the court on behalf of those unable to do so themselves.

This transformation meant that a letter, a postcard, or a newspaper report could be treated as a writ petition. Earlier, in Hussainara Khatoon v. State of Bihar, the Court had already recognised the right to speedy trial and free legal aid for undertrial prisoners. Through such cases, the judiciary became a vehicle for social change, addressing issues from prison reform and bonded labour to environmental protection and government corruption, as seen in Vineet Narain v. Union of India (1997), which laid down guidelines to insulate the CBI from political interference.

The debate over judicial overreach 🔗

This expanded role has not been free of criticism. Supporters argue that judicial activism and PIL have protected citizens’ rights, promoted social justice, and held the government accountable when other branches were unwilling or unable to act. Critics counter that courts sometimes stray into judicial overreach, taking on functions that properly belong to the elected legislature and executive, and that the flood of PILs can clog the courts and delay genuine cases. The challenge for the judiciary is to strike a balance between activism and restraint, intervening where rights are at stake without disturbing the separation of powers.

Why judicial review matters for democracy 🔗

Judicial review is more than a technical legal power. It is a guarantee that the promises written into the Constitution, particularly fundamental rights, are not just words on paper. It ensures that majorities in Parliament cannot override the basic freedoms of individuals, that the executive cannot act arbitrarily, and that the Constitution remains the ultimate reference point for every exercise of state power.

At the same time, the power carries responsibility. An unelected judiciary striking down laws made by elected representatives must use this authority with care, lest it tilt the delicate balance among the organs of the state. The ongoing conversation in Indian constitutional life is precisely about where that balance should lie, a tension that keeps the system dynamic and self-correcting.

What do you think? Should there be clearer limits on how far courts can go when reviewing the decisions of an elected Parliament, or does keeping judicial review wide and flexible offer better protection for citizens’ rights? And when the legislature and the judiciary disagree on what the Constitution demands, who do you think should ultimately have the final word?

References

1. https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/judicial-review-under-coi
2. https://chahalacademy.com/judicial-review
3. https://vidhijudicial.com/fr-art-13.html
4. https://www.nextias.com/blog/sovereignty-of-parliament/
5. https://unacademy.com/content/bpsc/study-material/polity/synthesis-of-parliamentary-sovereignty-and-judicial-supremacy/
6. https://www.shankariasparliament.com/current-affairs/gs-ii/basic-structure-doctrine
7. https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
8. https://judgments.ecourts.gov.in/KBJ/?p=home%2Fintro
9. https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
10. https://lawbhoomi.com/judicial-activism-and-public-interest-litigation/