Judicial Review, Definition, Evolution, Types, Constitutional Provisions

Judicial Review is a process that courts use to review the laws made by the government to check whether they are made based on the basic structure of the Constitution. If any law is found to be inconsistent with the Constitution, the courts can cancel it or modify it, or ask the government to make better laws. This system of judicial review safeguards citizens’ rights, upholds the rule of law in the country.

Judicial Review Evolution

The concept of Judicial Review evolved gradually through constitutional debates and landmark judgments. It originated from the U.S. case Marbury v. Madison (1803), which heavily influenced Indian constitutional framers.

In India, the Supreme Court expanded Judicial Review through cases such as Shankari Prasad (1951), Golaknath (1967), and the historic Kesavananda Bharati (1973) judgment.

• 1950s: Courts upheld Parliament’s power to amend Fundamental Rights (Shankari Prasad, 1951).
• 1960s: SC restricted this power, stating Parliament cannot amend Fundamental Rights (Golaknath, 1967).
• 1970s: Judicial Review became part of the Basic Structure (Kesavananda Bharati, 1973).
• 1980s-1990s: Review strengthened in areas like judicial appointments, environment, elections, and rights expansion.
• 2000s-2020s: Courts expanded review over ordinances, privacy, Aadhaar, electoral bonds, and constitutional amendments.

Types of Judicial Review

Judicial Review in India operates at multiple levels. Each type helps check different types of governmental actions. Courts use these powers to strike down unconstitutional, arbitrary, or ultra vires decisions.

• Constitutional Judicial Review: Courts examine whether legislative acts, executive orders, and administrative decisions are consistent with the Constitution. If any action violates constitutional provisions, courts can strike it down.
• Statutory Judicial Review: Courts interpret and assess the validity of statutes, rules, and regulations. This ensures that laws are applied correctly and remain consistent with other legal provisions.
• Administrative Judicial Review: Courts review decisions and actions taken by administrative or regulatory agencies. The review checks if agencies followed the law, maintained fairness, and stayed within their authority.
• Procedural Judicial Review: It focuses on whether proper legal procedures and due process were followed while making decisions. It ensures fairness, transparency, and adherence to established rules.
• Substantive Judicial Review: Courts examine the content, fairness, and reasonableness of laws or decisions. It goes beyond procedure and evaluates whether the decision is just and lawful in substance.

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Judicial Review Constitutional Provisions

Judicial Review in India is supported by various constitutional provisions that empower the Supreme Court and High Courts to examine the constitutionality of laws, executive actions, and state-centred disputes.

Judicial Review and Basic Structure Doctrine

Judicial Review in India is closely linked with the Basic Structure Doctrine, which ensures that certain fundamental features of the Constitution cannot be altered by Parliament, even through constitutional amendments.

Features of the Basic Structure Doctrine

• Introduced by the Supreme Court in Kesavananda Bharati v. State of Kerala (1973).
• Parliament can amend the Constitution, but cannot alter its “basic structure”.
• Protects fundamental elements like:
  • Supremacy of the Constitution
  • Rule of Law
  • Separation of Powers
  • Judicial Review
  • Fundamental Rights
  • Federalism
  • Democracy and Free Elections
• Acts as a check on arbitrary amendments by Parliament.

Judicial Review in the Ninth Schedule

The Ninth Schedule of the Indian Constitution was added by the First Amendment (1951) to protect certain laws, primarily land reform and agrarian legislation, from judicial review.

• Purpose: To ensure smooth implementation of socio-economic reforms, especially land redistribution, without being struck down by courts.
• Scope of Judicial Review: Originally, laws in the Ninth Schedule could not be challenged under Articles 14, 19, or 31 (Fundamental Rights).
• Judicial Intervention: In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court ruled that even laws in the Ninth Schedule are subject to judicial review if they violate the basic structure of the Constitution.
• Criteria for Review: Laws added after April 24, 1973 (Kesavananda Bharati case) are subject to judicial review and can be declared unconstitutional if they violate the basic structure of the Constitution.

Judicial Review vs Judicial Activism

Judicial Review is the power of courts to examine laws and government actions for constitutionality, while Judicial Activism involves proactive intervention by courts to protect rights, fill legal gaps, or address social issues. Here are the key differences between Judicial Review and Judicial Activism.

Judicial Review in India vs USA

Judicial Review exists in both India and the USA, but its scope, origin, and application differ. In the USA, it originated through judicial precedent (Marbury v. Madison, 1803). 

In India, it is constitutionally embedded through Articles 13, 32, 226, and 368, and covers not only laws and executive actions but also constitutional amendments.

Judicial Review Importance

Judicial Review is important because it protects the Constitution and Fundamental Rights, ensures that laws and government actions follow the Constitution, and prevents misuse of power.

• Protection of Fundamental Rights: Ensures that citizens’ rights are not violated by laws, executive actions, or policies.
• Supremacy of the Constitution: Keeps all laws and government actions in line with constitutional provisions.
• Check on Arbitrary Power: Prevents the legislature or executive from acting beyond their authority.
• Ensures Justice and Fairness: Makes sure decisions are reasonable, fair, and follow the rule of law.
• Maintains Federal Balance: Resolves conflicts between Centre and State laws, ensuring harmony in a federal system.
• Promotes Accountability and Transparency: Holds government and public authorities responsible for their actions.
• Safeguards Democracy: Acts as a guardian of democratic principles and prevents authoritarian misuse of power.

Contemporary Issues Related to Judicial Review

Judicial Review protects the Constitution and Fundamental Rights, but modern challenges affect its effectiveness in India.

• Legitimacy vs Majority Rule: Unelected judges striking down laws can seem to undermine elected representatives. Judicial review ensures protection of Fundamental and minority rights against “tyranny of the majority.”
• Activism vs Overreach: Courts act proactively to protect rights or fill gaps, but excessive intervention can be seen as overreach.
• Intervention occurs mainly when the legislature or executive fail in their duties.
• Separation of Powers: Judicial Review maintains checks and balances, but repeated or broad interventions can create conflicts with other government branches.
• Policy and Economic Decisions: Courts review complex matters like infrastructure projects or economic reforms.
• Appointments and Accountability: India’s collegium system ensures judicial independence but raises concerns about limited accountability and transparency.
• Backlog and Access to Justice: Over 5 crore cases pending in India; 88,000+ in SC, 63 lakh in High Courts.

Conclusion

Judicial Review is a key part of India’s democracy that makes sure all laws and government actions follow the Constitution. It protects citizens’ Fundamental Rights, preserves the core principles of the Constitution, and keeps a balance between the legislature, executive, and judiciary. Despite challenges like case backlogs and judicial overreach, Judicial Review is essential for ensuring justice, democracy, and the rule of law in India.