Judicial Review: Scope and Controversies in India
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- 28 Apr 2025 --
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Judicial review remains a cornerstone of India's constitutional democracy, ensuring that legislation and executive actions conform to the Constitution. Enshrined through key constitutional provisions, judicial review has evolved through judicial interpretation, often sparking significant debates about its scope and limits.
Constitutional Basis for Judicial Review
Judicial review in India derives its authority from multiple constitutional provisions, primarily:
- Article 13: Mandates that any law inconsistent with or in derogation of fundamental rights is void to the extent of inconsistency.
- Article 32: Guarantees the right to constitutional remedies, allowing individuals to move the Supreme Court directly for enforcement of fundamental rights.
- Article 226: Empowers High Courts to issue writs not only for the enforcement of fundamental rights but also for "any other purpose."
- Article 368: Allows for constitutional amendments but limits Parliament’s amending power through the doctrine of basic structure.
Unlike the American system where judicial review was judicially created (Marbury v. Madison, 1803), in India, it was expressly incorporated by the framers of the Constitution.
Scope of Judicial Review in India
Judicial review in India extends across three critical dimensions:
- Review of Legislative Actions:
Courts have the authority to invalidate laws passed by Parliament or State Legislatures if they contravene the Constitution. A notable example is the Kesavananda Bharati v. State of Kerala (1973) ruling, which laid down that constitutional amendments cannot destroy the "basic structure" of the Constitution.
- Review of Administrative Actions:
Judicial review ensures that executive and administrative actions are legal, reasonable, and procedurally proper. In A.K. Kraipak v. Union of India (1970), the Supreme Court emphasized the importance of fairness in administrative decisions.
- Review of Constitutional Amendments:
Although Parliament holds the power to amend the Constitution under Article 368, such amendments are subject to judicial review if they infringe upon the basic structure, as established in the Minerva Mills v. Union of India (1980).
Thus, judicial review serves as both a sword and a shield — protecting constitutional supremacy while occasionally influencing public policy outcomes.
Major Statutes and Provisions in Judicial Review
- Constitution of India: Articles 13, 32, 136, 141, 226, and 368.
- Administrative Tribunals Act, 1985: Although administrative tribunals were created, their decisions remain subject to judicial review by the High Courts and the Supreme Court.
- Representation of the People Act, 1951: Several provisions of this Act have been judicially reviewed, particularly concerning election disputes and disqualifications.
The judiciary's authority is, therefore, deeply rooted in constitutional mandates and legislative frameworks.
Key Controversies Surrounding Judicial Review
Despite its central role, judicial review has been the subject of considerable controversy in India:
- Judicial Overreach:
Critics argue that courts sometimes encroach upon legislative or executive domains. Examples include judicial interventions in environmental governance and administrative appointments.
- Delay and Inconsistency:
Judicial review proceedings can be protracted, leading to delayed justice, particularly in politically sensitive matters like electoral reforms and constitutional challenges.
- Criticism of the Basic Structure Doctrine:
The doctrine, although hailed as a safeguard, has also been criticized as being an unelected judiciary's creation without textual support in the Constitution.
- Socio-economic Policies Under Review:
Judicial scrutiny of government policies relating to reservations, subsidies, and economic regulations has been viewed as courts stepping into policy-making.
These controversies highlight the ongoing tension between judicial activism and judicial restraint.
Recent Developments in Judicial Review
- Electoral Bonds Judgment (2024):
In a landmark decision, the Supreme Court invalidated the Electoral Bonds Scheme, emphasizing the need for transparency in political funding and reaffirming the judiciary's power to protect fundamental rights.
- Abrogation of Article 370:
The Supreme Court, in December 2023, upheld the abrogation of Jammu and Kashmir's special status, triggering renewed debates on the limits of judicial deference to executive action on federal matters.
These recent cases demonstrate that judicial review continues to play a dynamic and evolving role in India's constitutional scheme.
Conclusion
Judicial review remains the ultimate guarantor of constitutional governance in India. While it strengthens democracy by keeping the legislature and executive accountable, its exercise must be tempered with caution to respect the principles of separation of powers. As the nation progresses, the judiciary’s role in balancing constitutional fidelity with democratic governance will remain both crucial and contested.
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