Judicial Review in India — Complete UPSC Guide (2026)

Quick Answer

Judicial Review is the power of the Supreme Court (Articles 32, 131-136) and High Courts (Article 226) to examine the constitutionality of legislative acts and executive orders, and to strike down those that violate the Constitution. Though not explicitly mentioned in the Constitution, it is derived from Article 13 (which voids laws inconsistent with Fundamental Rights), writ jurisdictions, and legislative competence provisions. The Supreme Court in Kesavananda Bharati (1973) declared Judicial Review part of the basic structure of the Constitution, making it unamendable. India's Judicial Review is narrower than the US version (procedure established by law vs due process of law) but has been expanded through judicial interpretation post-Maneka Gandhi (1978). Judicial Review is the bedrock of constitutional supremacy in India.

Meaning of Judicial Review

Judicial Review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. In India, this means the Supreme Court and High Courts can examine whether:

• A law passed by Parliament or State Legislature is consistent with the Constitution
• An executive order issued by the Union or State government complies with constitutional limits
• A constitutional amendment violates the basic structure
• A subordinate legislation (rules, regulations) conforms to the parent Act and the Constitution

If found unconstitutional, the law or order is declared void to the extent of inconsistency. This ensures that no organ of the State acts beyond its constitutional limits — a principle known as constitutional supremacy.

Constitutional Basis of Judicial Review

Although the term "Judicial Review" does not appear in the Constitution, the power flows from multiple articles working together:

Scope of Judicial Review

Judicial Review in India extends to:

1. Constitutional amendments: Can be reviewed for violation of basic structure (Kesavananda Bharati, 1973)
2. Central and State legislation: Can be struck down for violating Fundamental Rights or legislative competence
3. Executive orders: Subject to review for arbitrariness, lack of authority, or violation of rights
4. Administrative actions: Reviewable for procedural fairness and reasonableness
5. Quasi-judicial decisions: Tribunals and authorities subject to writ jurisdiction
6. Ordinances: Reviewable for compliance with constitutional requirements (Article 123 for President, Article 213 for Governor)
7. Treaties and international agreements: Reviewable when they affect domestic rights

Grounds for Striking Down Laws

The Supreme Court applies six main grounds for invalidating laws and executive actions:

1. Violation of Fundamental Rights (Article 13): Any law that abridges Part III rights is void. Most common ground.
2. Beyond legislative competence (Articles 245-246): If a State law enters Union list, or Parliament enters State list (without constitutional provisions), it is void.
3. Violation of basic structure (Kesavananda Bharati, 1973): Constitutional amendments that destroy basic features can be struck down.
4. Arbitrariness (post-Maneka Gandhi, 1978): Any law that is arbitrary, unreasonable, or unfair violates Article 14.
5. Violation of constitutional procedure: Money bill misclassification, improper certification, procedural defects.
6. Manifest unreasonableness: Laws that are grossly disproportionate to their objective.

Historical Evolution of Judicial Review in India

Phase 1: Establishment (1950-1967)

The Supreme Court used Judicial Review cautiously. Major rulings: A.K. Gopalan v. State of Madras (1950) took a narrow view of Article 21. Champakam Dorairajan (1951) gave Fundamental Rights primacy over DPSPs.

Phase 2: Conflict with Parliament (1967-1973)

Golak Nath v. State of Punjab (1967) held that Parliament cannot amend Fundamental Rights. This led to the 24th Amendment giving Parliament explicit power to amend any provision. The conflict culminated in Kesavananda Bharati v. State of Kerala (1973).

Phase 3: Basic Structure Doctrine (1973-Present)

Kesavananda Bharati (1973) — a 13-judge bench — laid down the basic structure doctrine. Parliament can amend any provision but cannot destroy the basic structure. Judicial Review became unamendable.

Phase 4: Expansion (1978-Present)

Maneka Gandhi v. Union of India (1978) expanded Article 21 and imported due process standards. Minerva Mills (1980) reaffirmed the basic structure doctrine and balanced FR-DPSP. L. Chandra Kumar (1997) declared Judicial Review under Articles 32 and 226 as basic structure.

Landmark Cases on Judicial Review

• A.K. Gopalan v. State of Madras (1950): Early narrow interpretation of Judicial Review.
• Golak Nath v. State of Punjab (1967): Parliament cannot amend Fundamental Rights.
• Kesavananda Bharati v. State of Kerala (1973): Established basic structure doctrine; Judicial Review is part of it.
• Indira Nehru Gandhi v. Raj Narain (1975): Struck down constitutional amendment that tried to immunize election of PM from Judicial Review.
• Maneka Gandhi v. Union of India (1978): Expanded scope of Article 21 and Judicial Review of "procedure established by law."
• Minerva Mills v. Union of India (1980): Reaffirmed Judicial Review as part of basic structure; balanced FR and DPSP.
• S.R. Bommai v. Union of India (1994): Extended Judicial Review to Article 356 (President's Rule).
• L. Chandra Kumar v. Union of India (1997): Judicial Review under Articles 32 and 226 is part of basic structure.
• I.R. Coelho v. State of Tamil Nadu (2007): Even laws in 9th Schedule are subject to Judicial Review if they violate basic structure.

India vs USA — Judicial Review Compared

Judicial Activism vs Judicial Restraint

Judicial Activism

Judicial Activism refers to the proactive role of the judiciary in interpreting laws and the Constitution to address emerging social, economic, and political issues. In India, judicial activism has manifested through:

• Public Interest Litigation (PIL) since the 1980s
• Expansion of Article 21 to include 30+ rights
• Reading rights into the Constitution (right to privacy, environment, education)
• Directives to executive (cleaning of Ganga, vehicular pollution, prison reforms)

Judicial Restraint

Judicial Restraint is the opposite philosophy — judges should defer to legislative and executive decisions, only intervening when there is clear constitutional violation. Critics of judicial activism argue it violates separation of powers and amounts to judicial legislation.

Judicial Overreach

When judicial activism crosses into policy-making and administration, it is termed judicial overreach. Examples cited as overreach: Court-monitored investigations, banning of firecrackers, directives on liquor sale near highways, monitoring of administrative actions.

Criticism and Limitations

1. Violation of separation of powers: Critics argue Judicial Review allows courts to override democratically elected legislatures.
2. Judicial legislation: Through activism, courts effectively make law without democratic mandate.
3. Delay in justice: Judicial Review proceedings can take years, delaying important legislation.
4. Inconsistency: Different benches give different interpretations, creating legal uncertainty.
5. Limited expertise: Judges lack technical expertise on complex economic, scientific, and environmental issues.
6. Counter-majoritarian: Unelected judges can strike down laws made by elected representatives.

UPSC Exam Relevance

Prelims (1-2 questions annually)

• Constitutional basis of Judicial Review
• Difference between Judicial Review in India and USA
• Cases that established or expanded Judicial Review
• Basic structure doctrine and Judicial Review
• Grounds for striking down laws

Mains GS2 (1-2 questions annually)

• "Discuss the constitutional basis and scope of Judicial Review in India." (15 marks)
• "Judicial Review is the bedrock of constitutional supremacy. Examine." (10 marks)
• "Critically analyze the line between Judicial Review and Judicial Overreach." (15 marks)
• "How has the Supreme Court used Judicial Review to expand Fundamental Rights?" (10 marks)

Common Mistakes in UPSC Answers

1. Saying Judicial Review is explicitly mentioned in the Constitution. Wrong — it is derived from multiple articles but not named.
2. Confusing Judicial Review with Judicial Activism. Review is the power; activism is one approach to using it.
3. Saying Parliament can abolish Judicial Review through amendment. Wrong — it is part of basic structure (Kesavananda Bharati, L. Chandra Kumar).
4. Citing only Article 13 as the basis. Incomplete — also cite Articles 32, 226, 131-136, 245-246.
5. Treating India's and USA's Judicial Review as identical. Different in source, standard, and scope.
6. Not mentioning basic structure doctrine. Any Mains answer on Judicial Review must reference Kesavananda Bharati (1973).

Frequently Asked Questions