Judicial review is the constitutional power of courts to test the validity of legislation and executive action against the Constitution. If a law violates the Constitution, the court declares it unconstitutional and unenforceable. The doctrine flows from the principle of constitutional supremacy — the Constitution is the highest law, and all other laws must conform. India inherits the doctrine from the United States but has developed it within India's own constitutional framework. The 2017 Prelims tested the precise meaning of judicial review. The 2019 Prelims tested two specific cases — the 44th Amendment's attempt to put PM elections beyond judicial review, and the Supreme Court's striking down of the 99th Amendment (NJAC). Since Kesavananda Bharati (1973), judicial review has been part of the basic structure — it cannot be removed even by constitutional amendment.
What judicial review means — the 2017 Prelims
The 2017 Prelims tested the precise definition of judicial review.
The 2017 question is precise. Judicial review concerns the constitutionality of laws and executive action — not their wisdom, not pre-assent review, and not review of the court's own decisions.
The judiciary asks: is this law within the legislative competence (under the Seventh Schedule)? Does it violate any Fundamental Right? Does it violate any other constitutional provision? Does it violate the basic structure? If yes to any of these, the law is struck down. If no, the law stands — even if the court considers the law unwise.
The wisdom-constitutionality distinction is fundamental. A law may be foolish, ineffective, or harmful — but if it is constitutional, the court will not strike it down. Conversely, a law may be sensible policy — but if it violates the Constitution, the court must strike it down. The distinction protects the legislature's policy-making prerogative while preserving the constitutional limits on legislative power.
Constitutional sources of judicial review
The Constitution does not contain a single article titled "Judicial Review." Instead, the doctrine flows from a network of provisions.
Article 13. "The State shall not make any law which takes away or abridges the rights conferred by this Part [Part III — Fundamental Rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void." Article 13 is the foundational text. It explicitly subjects all laws to Fundamental Rights review and declares offending laws void. The Supreme Court reads Article 13 as embedding the principle of judicial review.
Articles 32 and 226. These confer writ jurisdiction on the Supreme Court (Article 32) and High Courts (Article 226) for the enforcement of Fundamental Rights and "any other purpose" (under Article 226). Through writ jurisdiction, courts can strike down laws and executive actions that violate Fundamental Rights or are otherwise unconstitutional.
Article 131. The Supreme Court's original jurisdiction over inter-governmental disputes — through which constitutional questions of legislative competence between Centre and States are resolved.
Article 132. Constitutional appeals to the Supreme Court — through which challenges to High Court decisions on constitutional matters reach the apex court.
Article 246 + Schedule VII. The distribution of legislative powers between Centre and States. Courts review whether a law falls within the legislative competence of the enacting Legislature.
Article 245. "Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State." The "subject to" clause embeds judicial review — laws are subject to constitutional limits.
Together, these provisions create the architecture of judicial review. The Indian Constitution does not declare judicial review explicitly but builds it into the structural design. The Supreme Court in Kesavananda Bharati (1973) declared this architecture to be part of the basic structure.
Scope — what judicial review covers
Judicial review extends to all forms of state action.
Legislative review. Acts of Parliament and State Legislatures can be reviewed for: (i) legislative competence (whether the enacting Legislature had the power to make the law under the Seventh Schedule); (ii) violation of Fundamental Rights (Articles 14-32); (iii) violation of other constitutional provisions; (iv) violation of basic structure (for constitutional amendments under Article 368). If a law fails any of these tests, it is struck down to the extent of the contravention.
Executive review. Orders, notifications, rules, and other executive actions can be reviewed for: (i) constitutional validity; (ii) statutory authority (whether the executive acted within the law); (iii) procedural fairness (natural justice); (iv) reasonableness; (v) public purpose. Administrative actions failing these tests can be quashed.
Constitutional amendment review. Constitutional amendments under Article 368 can be reviewed for compliance with the basic structure doctrine (since Kesavananda Bharati 1973). Amendments that violate basic structure are unconstitutional even though procedurally valid.
Judicial review of judicial action. Decisions of subordinate courts, tribunals, and lower High Court benches can be reviewed by higher courts. The Supreme Court can review its own judgments under Article 137.
Limits. Some matters are excluded or restricted from judicial review:
(i) Article 31B — laws in the Ninth Schedule are protected from Fundamental Rights review (but post I.R. Coelho 2007, even Ninth Schedule laws can be challenged on basic structure grounds if added after 24 April 1973).
(ii) Article 74(2) — the question of whether ministerial advice was tendered to the President is not justiciable (but the materials on which advice is based can be examined).
(iii) Article 363 — certain pre-Constitution treaty disputes excluded.
(iv) Article 262(2) — Parliament can exclude court jurisdiction over inter-State water disputes (which the Inter-State Water Disputes Act 1956 does for tribunal-decided disputes).
The 2019 Prelims — two specific instances
The 2019 Prelims tested two specific instances where judicial review intersected with constitutional amendment.
- The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
- The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of judiciary.
The 39th Amendment story (statement 1 trap): During the Emergency in 1975, the Indira Gandhi government passed the 39th Amendment introducing Article 329A. This article placed the elections of the President, Vice-President, Prime Minister, and Speaker beyond judicial review. The amendment was a direct response to the Allahabad High Court's decision in State of Uttar Pradesh v. Raj Narain (1975), which had set aside Indira Gandhi's 1971 election. The Supreme Court in Indira Nehru Gandhi v. Raj Narain struck down the relevant clause of Article 329A as violating the basic structure (free and fair elections; equality; rule of law; judicial review). The 2019 trap was attributing this to the 44th Amendment instead of the 39th.
The 99th Amendment story (statement 2): The 99th Amendment of 2014 created the National Judicial Appointments Commission (NJAC) to replace the collegium system for appointing judges. The NJAC consisted of the CJI, two senior SC judges, the Law Minister, and two eminent persons. The Supreme Court in the Fourth Judges Case (2015) struck down the 99th Amendment by 4:1 majority, holding that it violated the independence of the judiciary — a basic structure feature. The collegium system was restored.
Judicial review as basic structure
The most consequential judicial development on judicial review is its inclusion in the basic structure of the Constitution.
Kesavananda Bharati v. State of Kerala (1973) established the basic structure doctrine — Parliament can amend the Constitution under Article 368 but cannot alter its basic structure. While Justice Khanna's opinion gave the doctrine its initial form, the catalogue of basic structure features has been developed in subsequent cases.
Judicial review was placed within basic structure in Minerva Mills v. Union of India (1980). Justice Bhagwati famously said: "The power of judicial review is unquestionably part of the basic structure of the Constitution." The 42nd Amendment's clauses (4) and (5) of Article 368 — which had attempted to put constitutional amendments beyond judicial review — were struck down for violating basic structure.
L. Chandra Kumar v. Union of India (1997) — a 7-judge bench ruling — consolidated the position. The Court held: "The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution." This jurisdiction cannot be ousted even by constitutional amendment. Tribunals can be set up to handle service matters etc., but the High Courts' writ jurisdiction over the tribunals' decisions cannot be excluded.
The implications are far-reaching:
(i) No constitutional amendment can remove judicial review.
(ii) Statutory ousters of court jurisdiction are subject to constitutional review — they cannot be absolute.
(iii) Even tribunals' decisions remain subject to High Court review under Articles 226/227.
(iv) The basic structure doctrine itself becomes self-protecting — judicial review of constitutional amendments enforces basic structure.
Judicial activism vs judicial restraint
The exercise of judicial review involves a continuing tension between activism and restraint.
Judicial activism is the willingness of courts to use their power expansively — striking down laws, ordering policy changes, filling legislative gaps, supervising administration. Indian judicial activism reached its peak in the post-Emergency period and through the 1990s. Public Interest Litigation, environmental law, prisoners' rights, women's rights — all developed through judicially activist interpretations of Articles 14, 19, 21, and 32.
Judicial restraint is the position that courts should defer to legislative and executive judgment in most cases, intervening only when constitutional violations are clear. Restraint counsels caution against second-guessing democratic policy choices.
The Supreme Court has navigated between the two. Some areas (Fundamental Rights, especially Article 21's expansion) show strong activism. Other areas (economic policy, foreign affairs, defence) show substantial restraint.
The 2017 Prelims (option b — questioning the wisdom of laws) tested precisely this tension. Courts do NOT have power to question wisdom — that would be excessive activism crossing into legislative territory. Courts have power to question constitutionality — even strong activism stays within constitutional review.
Critics of activism argue that the Supreme Court has at times overstepped — issuing directions that look like legislation, filling policy gaps that should be left to the legislature, supervising matters that belong to the executive. Defenders argue that activism has been necessary in the face of legislative-executive failures and that courts have been the only effective forum for constitutional rights enforcement.
Comparison with American judicial review
Indian judicial review is borrowed from the American system but with significant adaptations.
Source. In the US, judicial review was established by Chief Justice Marshall in Marbury v. Madison (1803) — through judicial interpretation rather than constitutional text. In India, it flows from explicit constitutional provisions (Articles 13, 32, 226, etc.) — judicially expanded but textually rooted.
Scope. American judicial review is broader in some respects (no Ninth Schedule equivalent; broader Bill of Rights). Indian judicial review is broader in others — basic structure doctrine review of constitutional amendments has no American equivalent.
"Procedure established by law" vs "due process". Article 21 originally used "procedure established by law" — narrower than the American "due process of law." After Maneka Gandhi v. Union of India (1978), Article 21 was interpreted to require fair, just, and reasonable procedure — bringing it closer to American due process.
Restrictions on Fundamental Rights. The Indian Constitution explicitly lays down the grounds for restricting Fundamental Rights (Articles 19(2)-(6), etc.). The American Bill of Rights leaves restrictions to be developed by judicial interpretation. The Indian approach is more constrained but also more predictable.
Constitutional supremacy. Both systems accept constitutional supremacy. The Indian system, however, has the additional feature of basic structure — the Constitution itself has a hierarchy in which the basic structure cannot be amended away. American constitutionalism does not have this internal hierarchy.
The result is that Indian judicial review is at once more textually grounded and more substantively expansive than the American counterpart. The basic structure doctrine has no parallel in American jurisprudence; it is an Indian innovation that has been studied and partly adopted in other jurisdictions (Bangladesh, Pakistan, some others).
What students must hold
Six points carry the weight. One, judicial review = power to pronounce upon the CONSTITUTIONALITY of laws and executive orders. NOT wisdom. NOT pre-assent. NOT review of own judgments. The 2017 Prelims tested this.
Two, sources: Article 13 (laws contravening Fundamental Rights void), Article 32 (Supreme Court writ), Article 226 (High Court writ), Article 131 (inter-governmental disputes), Article 132 (constitutional appeals), Article 245-246 + Seventh Schedule (legislative competence).
Three, scope: legislative review (laws), executive review (orders), constitutional amendment review (basic structure), inter-governmental review (Centre-State).
Four, judicial review is part of the basic structure since Minerva Mills (1980) and L. Chandra Kumar (1997). Cannot be removed even by constitutional amendment. Articles 32, 226/227 jurisdiction is "inviolable basic structure."
Five, the 39th Amendment of 1975 (not 44th — 2019 Prelims trap) introduced Article 329A placing PM elections beyond judicial review; the Supreme Court struck this down in Indira Nehru Gandhi v. Raj Narain (1975).
Six, the 99th Amendment (NJAC) was struck down by the Supreme Court in Fourth Judges Case (2015) for violating independence of the judiciary — basic structure. Collegium restored. The 2019 Prelims tested both these instances. For more, see Supreme Court jurisdiction and basic structure doctrine.