Judicial review refers to the judiciary’s authority to assess the constitutionality of laws enacted by both Central and State governments, as well as executive orders. In other words, it represents a form of legal proceeding where a higher court evaluates the legality of a decision or action taken by a public authority. If, upon review, these actions are found to violate the Constitution (ultra vires), the judiciary can declare them unconstitutional and therefore invalid. 

Judicial Review in India and Key Constitutional Provisions

The term “Judicial Review” does not appear in the Constitution. However, the power of judicial review of the higher judiciary emanates from several provisions of the constitution. These provisions are as follows:

• Article 13: This article states that any laws that conflict with or undermine the Fundamental Rights shall be considered null and void. 
• Article 32: This article guarantees the right to approach the Supreme Court for the enforcement of Fundamental Rights, allowing the Supreme Court to issue orders, directions, or writs for this purpose.
•  Article 136: This article gives the Supreme Court the right to grant special permission to appeal from any court or tribunal, excluding military tribunals and court-martial cases. 
• Article 142: This article indicates that the Supreme Court, in exercising its jurisdiction, may issue any decree or make any order that is necessary to achieve complete justice in any case or matter before it. 
• Article 226: This article empowers High Courts to issue orders, directions, or writs for the enforcement of Fundamental Rights and for other purposes.

The Constitution itself grants the judiciary, comprising both the Supreme Court and High Courts, the power of judicial review. Additionally, the Supreme Court has recognized this power as part of the Constitution’s basic structure. Therefore, judicial review cannot be limited or removed, even by a constitutional amendment. 

Types of Judicial Review in India

The power of judicial review can be broadly categorised into the following categories:

Reviews of Legislative Actions and Constitutional Amendments

This review entails the judiciary’s authority to verify that laws passed by the legislature adhere to constitutional provisions. Such judicial power ensures that the laws enacted by Parliament comply with constitutional boundaries. 

• Example: In the Indira Gandhi case (1975), the Supreme Court ruled on the Constitution (39th Amendment) Act, 1975. 
  • In this case, the Supreme Court struck down a provision of the 39th Amendment Act (1975) that excluded election disputes involving the Prime Minister and the Speaker of the Lok Sabha from the jurisdiction of all courts. 
  • The court determined that this provision exceeded Parliament’s amending power since it impacted the Constitution’s basic structure. 

Review of Administrative Actions 

This function serves to enforce constitutional discipline over administrative bodies while they exercise their powers. This helps in ensuring accountability of administrative agencies towards the constitution.

• Example: Anuradha Bhasin Case (2020) – Judicial review of suspension of internet
  • In this case, the Supreme Court banned the suspension of the internet for an indefinite period. The court also clarified that the prohibitory orders under section 144 of CrPC cannot be imposed to suppress legitimate expression of fundamental rights. 
  • The SC held that the Freedom of speech and expression through a medium of internet is a fundamental right under article 19(1)(a).

Review of Judicial Decisions 

This type of review is also used to amend or revise previous judicial decisions. Such review helps in ensuring that the judicial decisions are kept relevant as per demands of the time.

• Example: Kesavananda Bharati Case (1973)
  • The SC overruled its earlier decision in the Golaknath Case (1967)
  • In the Golaknath Case, the Supreme Court held that Fundamental Rights hold a ‘transcendental and immutable’ status, meaning that Parliament cannot reduce or remove any of these rights, and that constitutional amendment acts are also seen as laws under Article 13; thus, such amendments would be invalid for violating any Fundamental Rights. 
  • The SC in Kesavananda Bharati case held that the parliament, through constitutional amendment, can take away or modify fundamental rights but subject to the basic structure of the constitution.

Comparison of Judicial review in India and USA

The scope of judicial review in India is narrower than that in the USA, primarily because the American Constitution allows for ‘due process of law,’ while the Indian Constitution provides for ‘procedure established by law.’ The distinction between the two is as follows: 

Due Process of Law: This principle allows the Supreme Court broad authority to protect citizens’ rights. It can declare laws void if they violate these rights, based not only on substantive grounds of illegality but also on procedural grounds of unreasonableness. 

• This principle of judicial supremacy is acknowledged within our constitutional framework, but only to a limited degree. Additionally, we do not completely adopt the British principle of parliamentary supremacy.
• In effect, what exists in India is a synthesis of both, that is, the American principle of judicial supremacy and the British principle of parliamentary sovereignty.

Procedure Established by Law: When determining the constitutionality of a law, the Supreme Court examines only the substantive issue of whether the law falls within the authority’s powers. 

• It does not evaluate the law’s reasonableness, appropriateness, or policy effects. 
• In simpler terms, this means that a law enacted by the legislature or relevant body is considered valid only if the proper procedure has been followed. 

However, with the advent of judicial activism and public interest litigation, the SC has the limited power of due process of law to make the process of justice more equitable, inclusive and accessible.