Judicial review in India is a process by which theSupreme Court and theHigh Courts ofIndia examine, determine and invalidate theExecutive orLegislative actions inconsistent with theConstitution of India.^[1] TheConstitution of India explicitly provides forjudicial review through Articles 13, 32, 131 through 136, 143, 226 and 246.^[2]

Judicial review is one of the checks and balances in theseparation of powers, the power of thejudiciary to supervise thelegislative andexecutive branches and ensure constitutional supremacy.^[3] TheSupreme Court and theHigh Courts have the power to invalidate any law, ordinance, order,bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of theConstitution of India.^[1] SinceKesavananda Bharati v. State of Kerala (1970), the courts can invalidate any constitutional amendments if they infringe on theBasic Structure of theConstitution of India.^[1][3]

Frequently, judicial review is used to protect and enforce theFundamental Rights guaranteed in theConstitution. To a lesser extent, judicial review is used in matters concerning legislative competence concerning the centre-state relations.

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Article 13 deals with the Laws inconsistent with theFundamental Rights. TheConstituent Assembly debated the Draft Article on the 25th, 26 and 29 November 1948 and adopted the amended Draft Article on 29 November 1948.^[4][5]

The executive and legislative bodies cannot take any actions that infringe on the Rights conferred by Part 3 of the Constitution. If they do, the Courts can void part of the legislative or executive action that infringes on the Rights.^[4]

Article 32 guarantees the right to approach theSupreme Court forConstitutional Remedies when theirFundamental Rights are violated. TheConstituent Assembly debated and adopted the Draft Article with some amendments on 9 December 1948.^[6]

TheConstituent Assembly was unanimous about the importance of the Article.Gammiḍidala Durgabai, the only woman in the Committee on the Rules of Procedure, said^[5][7]

This is a right which is fundamental to all the fundamental rights guaranteed under this Constitution.

Madabhushi Ananthasayanam Ayyangar, Member of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, said^[5][7]

TheSupreme Court according to me is the Supreme guardian of the citizen's rights in any democracy. I would even go further and say that it is the soul of democracy. The executive which comes into being for the time being is apt to abuse its powers, and therefore theSupreme Court must be there, strong and un-trammelled by the day to day passions.

B. R. Ambedkar, Chairman of the Drafting Committee, noting the majority of those who spoke on this article have realised the importance and significance, said,^[5][7]

If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.

While the members have recognised the importance ofConstitutional Remedies,B. R. Ambedkar noted that despite the discussions onwrits, members have not realised the importance of including thewrits in this Article. After the adoption of the Constitution, a simple majority would not be able to take away the power to issuewrits.^[5][7]

Article 141 stated that the decisions of theSupreme Court were binding on all other courts in India. TheConstituent Assembly debated and adopted the Draft Article on 27 May 1949.^[8]

During the debate,B. R. Ambedkar clarified that though the Article reads all courts in India, it does not include the Supreme Court. The Supreme Court would be free to change its decision and take a different view from the one it had taken before. Following the clarification, the Draft Article was adopted without any amendment.^[8][9]

Article 142 stated that any decree or order passed by theSupreme Court to do complete justice was enforceable throughout the territory of India. TheConstituent Assembly adopted the Draft Article on 27 May 1949.^[9][10]

TheParliament enacted theFirst Amendment to the Constitution on 18 June 1951, adding the Ninth Schedule to Constitution to protect specific laws from judicial review.^[1][3] When the constitutionality of the amendment was challenged, a five-judge bench of theSupreme Court held that Article 368 grants theParliament the power to amend the Constitution, including theFundamental Rights and Article 368 inShankari Prasad Singh Deo v. Union of India (1951) andSajjan Singh v. State of Rajasthan (1965). The Bench held that the term law in Article 13(2) does not include the Constitutional Amendments.^{[1][3][11][12]}

An eleven-judge bench of theSupreme Court overruled the previous ruling on judicial review of the Constitutional Amendments inGolaknath v. State Of Punjab (1967). Since the amendment of the Constitution is a legislative process, an amendment under Article 368 is law within the meaning of Article 13 of the Constitution. Therefore, an amendment that "takes away or abridges" aFundamental Right is void.^[1][3][13]

In response to theGolaknath v. State Of Punjab (1967) ruling, theParliament passed amendments restricting the power of judicial review. TheTwenty-fourth Amendment excluded the Constitutional Amendment passed under Article 368 from the term law in Article 13(2). As a result, the Courts cannot invalidate the Constitutional Amendment for infringing theFundamental Rights.Twenty-fifth Amendment added Article 31C that theSupreme Court cannot invalidate any law related toDirective Principles in Article 39 (b) and (c) for infringing theFundamental Rights.^[1][3][14]

When the Twenty-fourth, Twenty-fifth and Twenty-ninth Constitutional Amendments were challenged, a thirteen-judge Bench of theSupreme Court overruled theGolaknath v. State Of Punjab (1967) in the verdict ofKesavananda Bharati v. State of Kerala (1973). The Bench held that Article 368 contained both power and procedure to amend the Constitution, and the term law in Article 13(2) does not include Constitutional Amendments but Article 368 does not empower theParliament to alter the Basic Structure of the Constitution, thus establishing theBasic Structure Doctrine. The Bench upheld theTwenty-fourth and Twenty-ninth Constitutional Amendments. However, it struck down the third clause in theTwenty-fifth Amendment that restricted the power of judicial review of laws for infringingFundamental Rights. The Bench held that theseparation of powers is an element of the Constitution protected by theBasic Structure Doctrine, wherejudicial review is one of the checks and balances in theseparation of powers.^[1][3][15] A five-judge Bench of theSupreme Court affirmed and further clarified theBasic Structure Doctrine inIndira Nehru Gandhi v. Raj Narain (1975). The Bench identified therule of law, which relies on effectivejudicial review, as an element of thebasic structure of the Constitution.^{[1][3][16][17]}

In response to theKesavananda Bharati v. State of Kerala (1973), theParliament passed theForty-second Amendment to^[1][3][14] A five-judge Bench of theSupreme Court applied and clarified theBasic Structure Doctrine inMinerva Mills v. Union of India (1977). The Bench struck down sections of the Amendment that removed the power of the Courts to review the Constitutional Amendments and accorded precedence to theDirective Principles of State Policy overFundamental Rights. The Bench clarified that the Constitution grants theParliament the power to amend, not destroy. While ruling this case, the Bench explicitly held thatjudicial Review is an element of the Constitution protected by theBasic Structure Doctrine.^[1][3][18]

A five-judge Bench of theSupreme Court held that the laws under the Ninth Schedule, before theKesavananda Bharati v. State of Kerala (1973) case, cannot be challenged in the Court for violatingFundamental Rights inWaman Rao v. Union of India (1981). In doing so, the Bench established the Doctrine of Prospective Overruling, which dictates that a decision in a particular case would have an operation in the future and will not carry any retrospective effect on the past judgments.^[3][19] Later, a nine-judge Bench of theSupreme Court clarified that any law placed in the Ninth Schedule after theKesavananda Bharati v. State of Kerala (1963) case is subject to judicial review on infringement of theFundamental Rights inIR Coelho v. State of Tamil Nadu (2007).^[3][20]

When the constitutionality of the Tenth Schedule was challenged inKihoto Hollohan v Zachillhu (1992), a five-judge Bench of theSupreme Court upheld the power of the Speaker to decide on questions of disqualification but voided the provision excluding the decision fromjudicial review. The Bench noted that the power of the Speaker is judicial power, which is required to adhere to therule of law and cannot be outside the purview of judicial review. The Bench limited the scope of judicial review to claims of bias and other principles ofnatural justice.^[21][22]

While dealing with the exclusion ofHigh Court jurisdiction in service affairs, a seven-judge Bench of theSupreme Court declared that Article 32 and Article 226 of the Constitution, which grants the power of judicial review over legislative action to the Supreme Court and the High Courts, is an integral and essential feature of thebasic structure of the Constitution inL. Chandra Kumar v. Union of India (1997). The Bench held that if a law excluded the jurisdiction of theHigh Court without setting up an alternative arrangement for judicial review, it would be violation of thebasic structure and hence outside the constituent power of theParliament.^[21][23]

The following is a list of Articles of theConstitution of India related to thejudicial review:^[2]

According to the comparative constitutional analysis by Dr Arne Mavčič,judicial review in India follows theAmerican Method, where the judicial review is exercised only in concrete cases or controversies and only in laws that are in effect or actions. This method differs from French Model, where judicial review is required before the law takes effect and in the abstract, without an actual case or controversy. In the European Model, the Courts can review after the law has taken effect, though either on concrete or abstract claims.^[24][25]

According to classification based on the organisational structure by Dr Arne Mavčič, India follows the High Court model, where only theSupreme Court andHigh Courts possess the power ofjudicial review.^[24]

Judicial self-restraint concerning legislative power manifests in the form of the presumption of constitutionality of the challenged statutes. While ruling in theCharanjit Lal v. Union of India (1950),Justice Fazl Ali held^[26]

The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.^[26]

Chief Justice S H Kapadia urged the judiciary to maintain self-restraint, respect the separation of power and not overtake the legislative function in the fifth M C Setalvad Memorial Lecture on Judicial Ethics at New Delhi on 16 April 2011.^[27]

Judicial activism, which is not grounded on a textual commitment to the Constitution or the statute, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or the legislature or the executive.^[27]

While dealing with the blatant misuse ofArticle 356, a nine-judge Bench of theSupreme Court reiterated that judicial review is abasic structure of the Constitution and held that the proclamation of the imposing President's Rule in the State is subject to judicial review inS. R. Bommai v. Union of India (1994).^[3][28]

A six-judge Bench of theSupreme Court implied that variousFundamental Rights in different Articles were mutually exclusive in the verdict ofA. K. Gopalan v. State of Madras (1950).^[29] This judgment influenced the judicial interpretation ofFundamental rights for 20 years, untilR.C. Cooper v. Union of India (1970), where an eleven-judge Bench overruled it and held thatFundamental Rights are not mutually exclusive.^[30]

The verdict ofR.C. Cooper v. Union of India (1970) significantly changed the way the Courts interpretedFundamental Rights. While ruling in the case ofManeka Gandhi v. Union of India (1978), a seven-judge Bench of theSupreme Court significantly expanded the interpretation of Article 21 of the Constitution, which protects life and personal liberty except for procedure established by law. Reading Article 21 with Articles 14 and 19, the Bench concluded that the "law" has to be reasonable and the "procedure" should be just, fair and reasonable. Essentially, the Bench read Articles 14 and 19 into Article 21.^[31]

While deciding theSunil Batra v. Delhi Administration (1978), a five-judge Bench of theSupreme Court held that the despite the lack of theDue Process Clause in theConstitution of India same consequence ensued after the decisions inR.C. Cooper v. Union of India (1970) andManeka Gandhi v. Union of India (1978).^[32] While ruling inBachan Singh v. State Of Punjab (1980), a five-judge Bench of theSupreme Court held that followingManeka Gandhi v. Union of India (1978), Article 21 will read to say, "no person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law."^[33] A five-judge Bench of theSupreme Court relying onManeka Gandhi v. Union of India (1978), Sunil Batra v. Delhi Administration (1978) andBachan Singh v. State Of Punjab (1980) held that substantivedue process is now to be applied to theFundamental Right to life and liberty inMohd Arif v. The Registrar (2014).^[34]

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