Introduction

Judicial Review is fundamental to the foundation of the constitution in contemporary democracy. It functions as a mechanism which empowers the judiciary to examine the validity of legislative enactments, executive actions and administrative decisions. The aim is to preserve the balance between the organs of the State and  maintain the supremacy of the Constitution. 

The idea stems from the American decision Marbury v. Madison (1803), where the Chief Justice John Marshall asserted that it is “emphatically the province and duty of the judicial department to say what the law is.” Evolving thereon, the concept has become indispensable in India. The Constitution is the supreme law of the land, and from provisions of the Constitution stems Judicial Review. It has, nonetheless, been developed into its current form through judicial interpretations. It began with judicial restraint, evolving gradually into a transformational constitutional philosophy. Today, it is centred upon equality, liberty and constitutional morality. 

However, it has expanded to engage with governance, public policy and socio-economic rights. This has sparked debates about  the scope of judicial power and the democratic credentials of non-elected judges overturning legislative and executive decisions.

Meaning and Constitutional Basis in India 

Judicial review in India is not explicitly concentrated in one provision unlike the U.S.; rather, it emerges structurally from the Constitution. It finds its basis predominantly in Article 13 which asserts that all “laws inconsistent with or in derogation of the fundamental rights” are void. This limits the power of the legislative. 

Furthermore, Article 32 empowers “the Supreme Court… to issue directions or orders or writs…, whichever may be appropriate, for the enforcement of any of the rights conferred by” Part III. The High Court has been conferred similar powers via Article 226. This effectively allows the courts to balance any inconsistencies and check them for any violation of fundamental rights.

Articles 131, 136, 141, 142 and 227 further support the concept of judicial review. All the above clauses empower constitutional courts to decide cases when there is a question of the interpretation of the constitution, oversee the work of subordinate courts and uphold the delivery of full justice. 

More importantly judicial review itself has been held to be part of the Basic Structure of the Constitution in Kesavananda Bharati v. State of Kerala and reiterated again in L. Chandra Kumar v. Union of India. Hence, the power of judicial review cannot be taken away even by constitutional amendments.

Grounds

Violation of Fundamental Rights

In A.K. Gopalan v. State of Madras, the Supreme Court adopted substantive due process to affirm that any procedure which deprives a person of his liberty must be “just, fair and reasonable”. This rejected the restrictive view of Maneka Gandhi v. Union of India. Judges, hence, are empowered to nullify any law or administrative act that may violate the fundamental rights without passing the reasonability test. The judiciary has since used Articles 14, 19 and 21 together to examine arbitrary state conduct. This has considerably broadened the protection scope of basic rights.

Lack of Legislative Competence

The seventh schedule of the Constitution divides legislative functions between the Union and States. Notwithstanding, there often arise disputes between the two vertical organs relating to legislative overlap. Courts utilize notions like pith and substance, colourable legislation and incidental encroachment in determining legislative competence. Such principles enable courts to go beyond the superficial form of legislation and to analyze its underlying character and substance.

Mala Fife Excerise of Power

Courts are authorized to set aside state actions based on ill faiths or misuse of discretionary authority.  Mala fide exercise of authority is a clear breach of constitutional governance as public power must always be exercised for legitimate constitutional purposes.

The theory takes considerable significance in politically sensitive cases like transfers, preventive detention, misuse of investigative agencies, and politically driven presidential acts. In such instances, the judicial review works as a control on authoritarian tendencies and arbitrary rule.

Arbitrariness Manifest

Under this approach, legislation is subject to invalidation if it is capricious, unreasonable or disproportionate. The idea gained renewed attention in Shayara Bano v. Union of India where the Supreme Court outlawed the practice of quick triple talaq. The decision exemplified the judiciary’s readiness to examine laws and practices not only for formal violations of the constitution but also for substantive absurdity.

Doctrine of Proportionality

The doctrine of proportionality has gained increasing prominence, especially in cases pertaining to violation of fundamental rights. It is used to examine the proportionality of the intent with the state measures.  Established in K.S. Puttaswamy v. Union of India, the court decided that any restriction on the right to privacy has to meet the constitutional conditions of legality, necessity and proportionality.

Scope

Legislative Acts

The judiciary reserves the right to evaluate the legislation of the state, including constitutional amendments. The broadening of the scope to include amending powers under Article 368 was introduced as a part of the Kesavananda Bharati case. As per the verdict, the Parliament does not have the authority to change the “basic structure of the constitution”. Thereafter, in Minerva Mills v. Union of India, the court reaffirmed the constitutional supremacy. 

Executive and Administrative Action

Judicial review is available against executive actions, administrative discretion and delegated legislation. The courts consider the extent to which the executive actions comply with constitutional principles, statutory authority and procedural fairness.

Judicial intervention in the executive power was even more during the Emergency and post Emergency period. The Emergency famously saw the suspension of Habeas Corpus by the Supreme Court in ADM Jabalpur v. Shivkant Shukla. The ruling has been widely criticized as a failure of constitutional adjudication. In K.S. Puttaswamy v. Union of India, the subsequent decision, effectively rejected the reasoning in ADM Jabalpur and thereby reinforced the constitutional duty of the judiciary to protect liberty even during times of crisis.

Judicial Decisions

The courts do exercise judicial review, but their decisions are not entirely insulated from further constitutional review. Under Article 137 of the Constitution, there is a provision for review petitions and the Supreme Court has expanded the concept of curative petitions to prevent miscarriage of justice.

This is because of a basic constitutional principle: judicial power itself must be governed by constitutional principles.

During Emergencies

The emergency of 1970s stills stands as one of the most gruesome episodes for India. The deferential stance of judiciary, highlighting the disadvantages of overuse of judicial restraint, only elevated the  horror. Thus, the post-emergency jurisprudence witnessed a more assertive court determined to protect fundamental liberties. The court was increasingly being viewed as the guardian of constitutional morality and democratic responsibility.

Landmark Judgments

In A.K. Gopalan v. State of Madras, the Supreme Court adopted a restrictive definition of  personal liberty. The Supreme Court held that the expression ‘procedure established by law’ in Article 21 only requires the state to act in accordance with a properly enacted law. The Court declared that it will not inquire into the fairness, justice or reasonableness of the law. Furthermore, the ruling of Golak Nath v. State of Punjab, denying the Parliament the authority to amend fundamental rights, created fiction between legislation and judiciary. 

Subsequently, Kesavananda Bharati v. Union of India, laid down the Basic Structure Doctrine, addressing the tension. It affirmed the constitutional model, which was further upheld in various cases. Indira Nehru Gandhi v. Raj Narain added to the theory democracy and free elections as part of the essential foundation. Minerva Mills v. Union of India reiterated the restricted amending power and laid emphasis on the compatibility between the fundamental rights and directive principles. I.R. Coelho v. State of Tamil Nadu found that statutes under the Ninth Schedule are open to fundamental structural scrutiny. K.S. Puttaswamy v. Union of India revolutionized privacy jurisprudence and fortified proportionality review and constitutional dignity. Taken together, these decisions reveal the shifting judicial understanding of constitutionalism and the widening scope of judicial review.

Critical Analysis 

Judicial review’s expansion has been both lauded and lambasted. On the one hand, judicial review is vital to protect minorities, uphold constitutional morality and curb arbitrary state power. The excessive judicial intervention, however, is involved with the problem of judicial overreach and democratic legitimacy.

One of the most serious criticisms is the counter-majoritarian problem. The primary tension in the Constitution is that unelected judges can overturn laws passed by our elected lawmakers . Some critics worry that too much judicial activism might turn the courts into a kind of super-legislature.

The Public Interest Litigation has further expanded the scope of the court’s participation in governance. But PIL jurisprudence, while advancing access to justice and social reform, also blurred institutional boundaries between adjudication and governance. Recently the courts have been giving policy directions about environmental control, education, police reforms and administrative functioning. 

But there are also problems of inconsistencies in judicial activism. Scholarly criticism continues to be attracted by the sealed-cover jurisprudence, the delays in constitutional bench proceedings and the selective urgency in politically sensitive matters.

The judicial review continues to be the basic structure of the constitutional identity of India. In a highly diverse constitutional democracy courts often serve as institutions that insulate constitutional ideals from majoritarian pressures. The use of constitutional morality by the judiciary in decisions such as Navtej Singh Johar v. Union of India is indicative of the rise of transformative constitutionalism in Indian jurisprudence.

With the onset of technological innovations, unprecedented challenges emerge. Data protection, facia recognition technology, AI-assisted monitoring are issues that can not be tackled with traditional methodologies. 

Thus, the future of judicial review is not simply a matter of growing judicial authority, but of developing rigorous constitutional criteria that can balance liberty, governance and democratic legitimacy.

Conclusion

Judicial review is no longer simply a constitutional safeguard but one of the most revolutionary characteristics of Indian constitutionalism. It safeguards fundamental rights, keeps the institutional balance in the democratic system and upholds the supremacy of the constitution. The Indian court has been continuously widening the horizon of judicial review through landmark rulings, while also defining constitutional morality, dignity and transformational constitutionalism. However, its legitimacy ultimately depends upon judicial restraint, institutional accountability and fidelity to constitutional values. The future of judicial review lies not merely in expanding judicial power, but in preserving constitutional equilibrium.

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