January 17, 2022

The Concept of Judicial Review Under the Constitution of India

Law does not exist for its own sake.

Law must respond to the demands of the present”.


The judiciary is considered as one of the essential pillars of democracy and is given a place of great significance in almost all the democratic countries. It is that branch of government which administers justice according to the law. The term judiciary is used to refer mainly to the courts whose primary function is to settle disputes and dispense justice between one or more citizens, or between the citizens and states, between centre and state or among the states inter- se.

The concept of ‘Judicial Review’ has been defined as the power of the courts to pass a law or a statute depending upon the constitutionality of such law or legislative act and also the power to refuse to enforce such acts if found to be unconstitutional. Such unconstitutional acts are thereby declared as void. However, when the judiciary invalidates any legislation or strikes down any executive action, it does not yearn for a confrontation with Parliament or Executive. Here, the court discharges its duty as a judicial sentinel.

The doctrine of Judicial Review is basically an American contribution though it was not expressly provided in the Constitution of the United States of America. But the framers however believed that the power of Judicial Review was implied in Article III Section 2 of the Constitution which stated that the Judicial power should be extended to all cases of law and equity arising under the Constitution. From this provision, it could be inferred that judiciary has the power to declare any Act of Congress that contradicted the provisions of the Constitution as unconstitutional. Though by 1800, nearly all the Federal Justices as well as a majority of the legal professionals had accepted the principle that the Supreme Court had the power to declare the Acts of Congress as unconstitutional, but it was Chief Justice John Marshall who made the issue clear. Whatever might have been the intention of the framers of the Constitution, the issue was finally decided by Chief Justice Marshall in 1803 in the famous case of Marbury vs. Madison declaring that the U.S. Supreme Court had power to judicial review.

The argument of Chief Justice Marshall, in that historic case was that the Constitution is the fundamental and paramount law of the nation and the Justices are bound to give effect to it. Thus, in case of conflicts between the Constitution and Acts of Congress, it is the duty of the courts to enforce the Constitution and ignore the Statute i.e. refuse to enforce the unconstitutional law.

However, Marshall’s opinion in the case of Marbury vs. Madison had been subjected to extensive criticism by various scholars and jurists. This was because when a court declared a Legislative Act to be unconstitutional, it meant that it could not be enforced as it was inconsistent with the Constitution. It was only the Executive who could enforce them and moreover, there was always a possibility that an Executive Officer would ignore the decree passed by the court. Such instances had actually happened in few cases. That is why President Andrew Jackson wrathfully remarked: “John Marshall has made his decision, now let him enforce it”. Marshall had also been criticised by Jefferson as wrong interpreter of the Constitution. Whatever the critics had stated, but it had to be admitted that Marshall was decidedly an “activist” Judge and his role was far more innovative and decisive than had ever been recognised.

Again, according to the doctrine of separation of powers, the Legislature, Executive and the Judiciary should be given to act independently and there shall be no encroachment or transgression on each other. Moreover, each of these organs of the State should be entitled to decide the constitutionality of a statute before whom it first arises, and its decision should be such that it should be binding on the other two organs of the State. But, this cannot however work satisfactorily if there does not exist an independent organ to interpret the Constitution and enforce the same. So, here involves the practise of a craft which is essentially the judiciary. Only a professionally trained body of lawyers and judges could be entrusted with such a function. The Legislature and the Executive could not be expected to perform such a function because they are politically partisan bodies.

It was therefore left to the Judiciary to interpret the Constitution. But, the exclusiveness of this function should not turn into judicial supremacy as such the three organs have to be given co-ordinate powers which would work as follows: In case if a statute is declared as unconstitutional by the courts, then in such a situation, the Legislature has the power either to remedy the situation by way of amending the Constitution or by way of amending the statute concerned to make it constitutional.

The collateral judicial review itself may be of two kinds, namely- the judicial review of administrative action and the judicial review of legislation. If it is against an administrative action, then it is directed against the executive department or administrative authorities of the State. Since it seeks to review the administrative action, so it is thereby called judicial review of administrative action. If on the other hand, if it is directed against a Statute of Legislature or subordinate legislation made under a Statute by an administrative authority in the nature of rules, regulations, bye-laws etc, then it directed not against the Executive Department, but against the law making action of the Legislature or of the Executive. Since it seeks to determine the validity of a legislation, it is called judicial review of legislation. However, the judicial review of administrative action had originated and developed much earlier than the judicial review of legislation.

The principles upon which the power of judicial review has to be exercised by the courts are:

(a) Irrationality (b) Illegality (c) Procedural impropriety

Again. Judicial Review has primarily two functions to perform which are inter-related:

· Legitimising governmental action

· To protect a Constitution against any undue encroachments by the Government.

Unlike the United States, the Constitution of India explicitly establishes the doctrine of Judicial Review in several provisions which include Article 13(2), 32, 131-136,143 and 226. Article 13(2) of the Constitution of India provides that the State shall not make any law which takes away or abridges the Fundamental Rights conferred by Part III of the Constitution and any law made in contravention of fundamental rights shall to the extent of contravention be void. The doctrine of Judicial Review is thus firmly rooted in India and has the explicit sanction of the Constitution.

In the case of A.K.Gopalan v. State of Madras1, Hon’ble Chief Justice H.J. Kania pointed out that it was only a way of abundant caution that the framers of the Constitution inserted this specific provision in Article 13. Justice Kania observed: “In India for a statute law to be valid, it must be in conformity with the judiciary to decide whether any enactment is constitutional or not.”

This means that the authority of the court has to be exercised in such a manner that neither the Parliament nor the Executive should exceed the limits set on them by the Constitution, and if they ever did, the court has the power to halt it.

In State of Madras v. V.G. Row2, Hon’ble Chief Justice, Patanjali Sastri observed that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted due process clause in the fifth and fourteenth amendments.

However, the scope of judicial review in India is somewhat limited as compared to that of United States of America because the power of invalidating laws vested in the Supreme Court on the ground of contravention of Fundamental Rights differs from the powers exercised by the United States Supreme Court. The reason behind the limited power of judicial review in India is that our Constitution does not provide any clause for ‘due process of law’ and ‘judicial supremacy’ and the ‘due process’ clause and the doctrine of ‘judicial supremacy’ have made the US Supreme Court the arbiter of social policy, in other words a super legislature.

In India, on the other hand, though the doctrine of legislative supremacy prevailed till 1967, subjected to certain constitutional limitations, but the majority judgement inGolak Nath3 case, disturbed the balance hither to maintain. In this case, Hon’ble Chief Justice Subba Rao claimed a law making role for the Supreme Court. He defined fundamental rights as transcendental and immutable and were thus beyond the reach of Parliament and also under the amending power of Article 368. The judgement in Golak Nath case placed a permanent restraint on the power of the Parliament to pass any amendment of the Constitution which had the effect of taking away or abridging fundamental rights.

This assertion of judicial power led to furious controversy and the parliamentarians repudiated it through the Twenty Fourth Amendment of Constitution, which restored to Parliament the power to amend the Constitution including the Fundamental Rights. In theKeshavananda Bharati4 case, the Supreme Court reversed its earlier decision on the Golak Nth case and upheld the power of Parliament to amend by way of addition, variation or repeal any provision of the Constitution provided it did not alter the basic structure of the Constitution.

According to Hon’ble Chief Justice Sikri, the basic structure of the Constitution, consists of (1) Supremacy of the Constitution, (2) Republican and democratic forms of the Government, (3) Secular character of the Constitution, (4) Separation of powers between the Legislature, Executive and the Judiciary, (5) Federal character of the Constitution. The theory of basic structure was applied by the Supreme Court in the case of Indira Nehru Gandhi v. Raj Narain5 to struck down clause (4) of Article 29A, which was inserted by the Constitution 39th Amendment Act, 1975, ousting the jurisdiction of the Supreme Court to decide disputes relating to the election of the President, Vice President, Prime Minister and the Speaker of the House of People. The amendment was made to validate with retrospective effect the election of the then Prime Minster, which was set aside by the Allahabad Court. The Apex Court in this case has added some other features as basic structure of the Constitution, which include Rule of Law, Judicial Review, democracy which implies free and fair election.

In fact , the Supreme Court of India has played a very significant role in expounding various provisions of the Constitution by assuming jurisdiction under the provisions of the Constitution vesting power of judicial review as stated above (Articles 13, 32, 131-136, 143, 226). The laws declared by the Apex Court are the guiding principles in the field of constitutionalism of our country.

However, though the doctrine of judicial review has a place of great significance in our country, but the Constitution of India has excluded certain provisions from the purview of Judicial Review, for example, Article 53 which states that the executive power of the Union shall be vested in the President. In Article 74 it is again laid down that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President. At the same time it stipulates that the question whether any, and if what, advice was tendered by Ministers to the President shall not be inquired in any court of law. Similarly, Article 77 says that all executive action of the Government of India shall be expressed to be taken in the name of the President. Clause (2) of Article 77 says that orders or instruments made in the name of the President shall not be called in question on the ground that it is not an order or instrument made or executed by the President

Today, in our country, judicial review has proved to be a powerful weapon to restrain the unconstitutional use of power by the Legislature and the Executive. The system of judicial review under the Indian Constitution provides avenues of redress to an individual affected by State action, including acts of public servants. Having considered all the pros and cons, we can hold that judicial review has ingrained in our Constitutional system and in order to keep the doctrine effective, the Judiciary must enjoy free hand within the constitutional limits so as to enable it to afford even handed justice without fear or favour and also to maintain dignity and prestige of the Courts, the Judiciary should be manned with such persons who are honest, sincere and competent with constitutional commitments. Lastly, it can therefore be said that judicial review has been ordained by our Constitution and the same has been playing its role effectively, and shall continue to do the same.


1.AIR 1950,SC 27

2.AIR 1952,SC196

3. Golak Nath v. State of Punjab, AIR 1967,SC 1643

4. Keshavananda Bharati v. State of Kerala, AIR 1973, SC 1461

5. AIR 1975, SC 2299

Author Details: Barasha Kalita (NEF Law College, Affiliated to Gauhati University)

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