Judicial review

Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 6, Ch 10 "Grassroots Democracy – Part 1: Governance"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 7, Ch 6 "The State, the Government, and You"; Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 9, Ch 6 "Democracy"; Class 11, Ch 1 "Constitution: Why and How?"; Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 6 "Judiciary"

Meaning

Judicial review is the power of the Supreme Court and the High Courts to check whether a law, a constitutional amendment or a government action follows the Constitution. If it does not, the court can declare it void (of no legal force).

• It keeps Parliament, state legislatures and governments within the limits the Constitution sets.
• It also protects fundamental rights (the basic rights listed in Part III of the Constitution) from being taken away by ordinary laws.

Explanation

Where the power comes from

• The words "judicial review" do not appear anywhere in the Constitution. The power comes from several provisions read together:
• A written Constitution. It is the highest law, so someone must decide when a law breaks it.
• Art. 13: the State cannot make a law that takes away or cuts down fundamental rights. Any such law is void to the extent that it conflicts with them.
• Art. 32 (Supreme Court) and Art. 226 (High Courts): the power to issue writs (court orders) to protect rights.
• Arts. 131-136: the Supreme Court's original jurisdiction (cases that start in the Supreme Court, such as Centre-state disputes under Art. 131), its appellate jurisdiction (appeals from lower courts), and special leave to appeal (Art. 136).

• Arts. 245-246, 251 and 254: how law-making power is split between the Union and the states, and which law wins when the two clash (repugnancy).

• Origin: the USA, Marbury v. Madison (1803).

• India sits in the middle:
• In Britain, parliamentary sovereignty applies. No court can strike down an Act of Parliament.
• In India, Parliament makes laws and can amend the Constitution, but the courts can test both.

What it covers and on what grounds

• What it covers: Union laws, state laws, constitutional amendments and executive actions.
• Three grounds for striking down a law:

Ground	What it means	Example
Violation of fundamental rights	A law breaks a right in Part III, so Art. 13 makes it void	A law that restricts speech beyond the limits allowed by Art. 19(2)
Breach of the federal division of powers	A legislature makes a law on a subject outside its own list in the Seventh Schedule (Art. 246)	A Union law on a State List subject, challenged by a state
Breach of the basic structure (amendments only)	An amendment under Art. 368 destroys a core feature of the Constitution	Kesavananda (1973) and Minerva Mills (1980)

• From "procedure established by law" to "due process":
• Art. 21: no person shall lose life or personal liberty "except according to procedure established by law".
• A.K. Gopalan (1950): read Art. 21 narrowly. If a valid law laid down a procedure, the court would not ask whether that procedure was fair.
• Maneka Gandhi (1978): the procedure must be "just, fair and reasonable". Arts. 14, 19 and 21 are linked, so a law touching liberty must pass all three tests.
• In practice, this brought in due process: a law that takes away liberty must itself be fair, and not just properly passed.

Limits on judicial review

• Ninth Schedule (Art. 31B): added by the 1st Amendment (1951). Laws placed in this Schedule were protected from challenge on fundamental-rights grounds.

• I.R. Coelho (2007): laws added after 24 April 1973 can still be tested against the basic structure, including the rights in Arts. 14, 19 and 21.

• Art. 74(2): courts cannot ask what advice the ministers gave the President.

• Arts. 122 and 212: courts cannot question proceedings of Parliament or a state legislature on the ground of irregular procedure.
• Art. 262(2): Parliament may bar courts from hearing inter-state river water disputes.
• Art. 329(a): laws on delimitation (drawing constituency boundaries) cannot be questioned in court.
• Self-restraint by courts (ways to avoid striking down laws without need):
• Presumption of constitutionality: a law is assumed to be valid. The person challenging it must prove that it is not.
• Severability: only the bad part of a law is removed. The rest survives.
• Reading down: wide words in a law are given a narrower meaning, so the law stays within the Constitution.

In the Constitution and practice

The contest with Parliament over amending fundamental rights

• 1st Amendment (1951): courts had struck down some land-reform laws under the right to property. Parliament replied by creating Art. 31B and the Ninth Schedule.
• Shankari Prasad (1951) and Sajjan Singh (1965): an amendment is not "law" under Art. 13, so Parliament can amend fundamental rights.
• Golaknath (1967): reversed this view. An amendment is "law" under Art. 13, so Parliament cannot cut down fundamental rights.
• 24th Amendment (1971): said Art. 13 does not apply to amendments made under Art. 368. It also made presidential assent to a constitutional amendment bill compulsory.
• 25th Amendment (1971): brought in Art. 31C. It protected laws that carry out Art. 39(b) and (c) (sharing out material resources fairly and stopping wealth from piling up in a few hands) from challenge under fundamental rights [3].

Kesavananda Bharati (24 April 1973) — judicial review becomes a basic feature

• It was decided by a 13-judge bench [3].
• Parliament can amend any part of the Constitution, but it cannot destroy the basic structure. The basic structure is the set of core features that no amendment can destroy.
• The Court decides what is basic. The right to property is not part of it.
• The second part of Art. 31C was struck down. That part stopped courts from asking whether a law really served the Directive Principles. The Court held that judicial review is part of the basic structure [3].

The Emergency and after

• Indira Gandhi v. Raj Narain (1975): the Court struck down an amendment that tried to put the Prime Minister's election beyond the reach of any court. Free and fair elections are part of the basic structure.
• ADM Jabalpur (1976): held that during an Emergency no one could go to court to enforce Art. 21. It was overruled in Puttaswamy (2017).
• 42nd Amendment (1976):
• It widened Art. 31C to cover all Directive Principles [3].

• It added Art. 368(4) and (5) to stop courts from reviewing amendments.

• Minerva Mills (1980):

• Struck down Art. 368(4) and (5) and the 42nd Amendment's widening of Art. 31C [3].

• Held that the harmony between Part III (rights) and Part IV (Directive Principles) and a limited amending power are themselves basic features [3].

• Waman Rao (1980): Art. 31C in its form before 1976 stays valid [3]. A nine-judge bench has been asked whether the original Art. 31C comes back to life after a later change to it is struck down (Property Owners Association, 2024) [3].

Executive powers brought under review

• Pardons (Arts. 72 and 161): Kehar Singh (1989) held that pardons can be reviewed. Epuru Sudhakar (2006) held that a pardon can be struck down if it was given on irrelevant or political grounds, or without applying the mind.
• President's rule (when the Union takes over the running of a state, under Art. 356): S.R. Bommai (1994) allowed courts to examine the proclamation. A government's majority must be tested on the floor of the House.
• Ordinances (Arts. 123 and 213): Krishna Kumar Singh (2017) held that ordinances can be reviewed. Re-issuing them again and again is a fraud on the Constitution.
• The Governor's discretion: Nabam Rebia (2016) held that it is narrow and open to review.

Review inside the legislature

• Kihoto Hollohan (1992): under the Tenth Schedule (the anti-defection law), the Speaker acts as a tribunal, so the Speaker's decisions can be reviewed by courts.
• Keisham Meghachandra Singh (21 January 2020): the Speaker must decide disqualification petitions within three months from the date of filing, unless there are exceptional circumstances [4].
• Subhash Desai (11 May 2023, Constitution bench): dealt with the Shiv Sena split. Questions included whether a Speaker facing a removal notice can still decide disqualification cases, and the Governor's role in calling a floor test [5].
• Sita Soren (4 March 2024, seven judges): overruled P.V. Narasimha Rao (1998). A legislator who takes a bribe to vote or speak gets no immunity under Art. 105 or 194 [2].
• Floor tests ordered by courts: Jharkhand (2005), Karnataka (2018) and Maharashtra (2019).

Don't confuse with

• Writ: judicial review cancels a law or action. A writ orders a person, official or body to do something or to stop doing something, for example mandamus (an order to a public official to carry out a legal duty).
• Parliamentary sovereignty (Britain): British courts cannot strike down an Act of Parliament. Indian courts can strike down both laws and constitutional amendments.
• Procedure established by law vs due process: Art. 21 uses the words "procedure established by law". Gopalan (1950) read them narrowly. Maneka Gandhi (1978) required the procedure to be "just, fair and reasonable", which in practice brought in due process.
• Judicial activism: judicial review is the legal power to test laws and actions against the Constitution. Activism is the way courts choose to use that power, for example when they order floor tests or set time limits for Speakers.

Prelims Hooks

• The words "judicial review" are not used in the Constitution. The power rests on Arts. 13, 32, 226, 131-136 and 245-254. It comes from Marbury v. Madison (USA, 1803).
• Shankari Prasad (1951) and Sajjan Singh (1965): Parliament can amend fundamental rights. Golaknath (1967): it cannot. Kesavananda (1973, 13 judges): it can, but it cannot destroy the basic structure [3].
• Minerva Mills (1980) struck down Art. 368(4) and (5), which the 42nd Amendment (1976) had added to bar courts from reviewing amendments [3].
• I.R. Coelho (2007): Ninth Schedule laws added after 24 April 1973 can be tested against the basic structure.
• Trap: judicial review is part of the basic structure. The right to property is not. Property is now only a legal right under Art. 300A (44th Amendment, 1978).
• Pairs to match: Art. 74(2) → ministers' advice to the President cannot be questioned. Arts. 122/212 → legislative procedure cannot be questioned. Art. 262(2) → courts can be barred from water disputes. Art. 329(a) → delimitation laws cannot be questioned.

Mains Points

• Who has the last word on the Constitution?
• Kesavananda turned a fight about property into a balance of power. Parliament can amend the Constitution, and the Court guards its core.
• Critics say unelected judges can veto the elected Parliament, and that "basic structure" has no clear definition.

• Supporters point to the 39th and 42nd Amendments of the Emergency years as proof that Parliament needs some limit.

• Rights vs Directive Principles:

• The story of Art. 31C runs from the 25th Amendment (1971) to the 42nd Amendment (1976) to Minerva Mills (1980) [3].
• It shows the Court treating Parts III and IV as partners, with neither part allowed to override the other.

• This is useful for GS-II questions on the Constitution's "social revolution" goal.

• Restraint vs activism:

• Restraint: the presumption of constitutionality, severability, reading down, and the bars in Arts. 74(2), 122, 212 and 329(a).
• Wider review: pardons, Art. 356, Governors, Speakers (the three-month limit in Keisham, 2020 [4]) and legislators' bribery (Sita Soren, 2024 [2]).
• A good answer argues for review that is principled and predictable, not for less review.

Read more

• Judicial review and the contest with Parliament