Judicial Review in India: Meaning, Scope and Sources

Judicial review scope in India refers to the power of the Supreme Court and the High Courts to examine laws made by Parliament and state legislatures, and actions of the executive, and to declare them void or ultra vires if they contravene the Constitution. Unlike Britain, where Parliament is legally sovereign and no such power exists, the Indian judiciary can strike down even validly enacted legislation that conflicts with constitutional provisions.

Meaning and Constitutional Basis

The Indian Parliament, unlike the British Parliament, is not a sovereign body in the fullest legal sense — its authority and jurisdiction are defined, limited and restrained by the Constitution. Commentary on this subject identifies several factors that limit the sovereignty of the Indian Parliament and that together form the basis for judicial review:

1. Written nature of the Constitution — The Constitution is the fundamental law of the land, defining the authority and jurisdiction of all three organs of the Union government. Parliament must operate within these prescribed limits, and there is a legal distinction between Parliament's ordinary legislative authority and its constituent (amending) authority. Certain amendments additionally require ratification by half of the states. Britain, by contrast, has no single written constitution of this kind.
2. Federal system of government — India has a constitutional division of powers between the Union and the states, so Parliament's law-making authority is generally confined to subjects in the Union and Concurrent Lists, and does not extend to the State List except in limited, temporary circumstances. Britain, being unitary, vests all powers in the centre.
3. Independent judiciary with the power of judicial review — Both the Supreme Court and the High Courts can declare laws enacted by Parliament void and unconstitutional if they contravene the Constitution. No comparable system exists in Britain, where courts cannot invalidate an Act of Parliament.

In this respect, the Indian Parliament resembles the United States Congress more than the British Parliament: in the USA too, the legislature's sovereignty is legally restricted by a written constitution, a federal system, a system of judicial review, and a Bill of Rights.

Scope of Judicial Review

Judicial review in India extends across several domains:

• Legislative action — Courts can strike down laws, whether made by Parliament or state legislatures, that are inconsistent with constitutional provisions.
• Executive/administrative action — Government orders and administrative decisions are subject to review where they infringe constitutional rights or exceed lawful authority.
• Personal liberty under Article 21 — In Maneka Gandhi v. Union of India (1978), the Supreme Court infused judicial review directly into Article 21, holding that “procedure established by law” must itself be a fair, just and reasonable procedure. This turned Article 21 into a safeguard against arbitrary legislation and, through subsequent interpretation, came to cover rights such as privacy, a speedy trial, free legal aid, protection against custodial violence, and protection against undue delay in execution of sentences.
• Quasi-judicial tribunals — Tribunals whose decisions bind parties with the force of a judicial decision, but which do not follow the exact procedure of ordinary courts, are placed under the control and supervision of the Supreme Court and High Courts. Where a tribunal's order infringes a person's fundamental right, relief can be sought through a writ of certiorari to the Supreme Court to quash that decision — a role comparable to the English High Court's use of prerogative writs to review quasi-judicial bodies.
• The pardoning power — Judicial review also applies, though in limited form, to the President's power to grant pardons under Article 161. The President cannot exercise this power without the advice of the Central Government, and courts have accordingly recognised only a limited scope for reviewing its exercise, since it is fundamentally an executive act taken on ministerial advice.

Judicial Review as a Basic Feature

Beyond its use to test particular laws or orders, judicial review is also treated in constitutional discussion as being among the basic features of the Constitution — a status debated in the context of cases such as I.R. Coelho v. State of Tamil Nadu, which examined the relationship between the Ninth Schedule, fundamental rights and the basic structure doctrine. This underlines that judicial review is not merely an ordinary judicial function but one of the structural safeguards that even a constitutional amendment cannot remove.

Historical Background: The Constituent Assembly

The importance attached to judicial oversight of personal liberty has roots in the Constituent Assembly debates. On 15 September 1949, H.V. Kamath argued that the Constitution should explicitly guarantee a speedy trial, the right to cross-examine witnesses, and legal counsel for the accused. He also argued that preventive detention should be subject to a fixed maximum period and that the validity of detention should be reviewed by judicial courts rather than administrative boards — a position that anticipated the later judicial expansion of protections under Article 21.

India, Britain and the USA Compared

UPSC Relevance

Prelims:

• Factors limiting the sovereignty of the Indian Parliament: written Constitution, federalism, judicial review, Fundamental Rights.
• Contrast between the British system (no judicial review, sovereign Parliament) and the Indian/American systems (judicial review, limited legislature).
• Holding in Maneka Gandhi v. Union of India (1978) on Article 21.

Mains:

• Explain the constitutional basis of judicial review in India and compare it with the British and American models (GS2, polity/judiciary).
• Discuss judicial review as a basic feature of the Constitution, with reference to debates around the Ninth Schedule and the I.R. Coelho case.
• Examine the scope of judicial review over quasi-judicial tribunals and the President's pardoning power.

FAQ

Q1. What is the scope of judicial review in India? Judicial review in India covers legislative laws, executive and administrative action, quasi-judicial tribunal decisions, and — in limited form — even acts like the President's pardoning power, allowing courts to strike down anything inconsistent with the Constitution.

Q2. Why does Britain not have judicial review? Britain has no single written constitution and its Parliament is legally sovereign, so British courts cannot declare an Act of Parliament invalid, unlike courts in India or the USA.

Q3. What are the constitutional sources of judicial review in India? Judicial review flows from the written character of the Constitution, the federal division of powers between Union and states, the existence of an independent judiciary, and the Fundamental Rights — together these limit Parliament's sovereignty and empower courts to test laws against the Constitution.

Q4. How did the Maneka Gandhi case affect judicial review? It held that “procedure established by law” under Article 21 must be fair, just and reasonable, effectively bringing personal-liberty legislation within the scope of substantive judicial review rather than mere procedural compliance.

Q5. Is judicial review a basic feature of the Constitution? Constitutional discussion, including in the context of the I.R. Coelho case, treats judicial review as one of the basic features of the Constitution, meaning it cannot be removed even by a constitutional amendment.

Quick Revision

• Judicial review = power of SC/HCs to declare laws or executive acts void if unconstitutional.
• Britain: no judicial review, sovereign Parliament. India and USA: written constitution + judicial review limit the legislature.
• Three key limits on Indian Parliament's sovereignty: written Constitution, federalism, judicial review (plus Fundamental Rights).
• Maneka Gandhi v. Union of India (1978) — Article 21 procedure must be fair, just, reasonable.
• Quasi-judicial tribunals are supervised by SC/HCs; writ of certiorari available against rights-infringing orders.
• President's pardoning power (Article 161) subject to only limited judicial review, exercised on Central Government advice.
• Judicial review is widely treated as a basic feature of the Constitution (debated via cases like I.R. Coelho).
• 15 Sept 1949: H.V. Kamath's CAD speech foreshadowed judicial oversight of personal liberty and detention.

Sources

• Constitution of India, Article 21, Article 161 — https://legislative.gov.in
• Supreme Court of India, Maneka Gandhi v. Union of India, 1978 AIR 597
• Constituent Assembly Debates, 15 September 1949 (H.V. Kamath) — https://cadindia.clpr.org.in

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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