Judicial Review in India: Basis, Basic Structure and Judicial Activism

Judicial Review in India: Meaning and Constitutional Basis

What Is Judicial Review

In India, judicial review is the power of the Supreme Court and the High Courts to examine whether a law, an executive order or a constitutional amendment is consistent with the Constitution, and to declare it unconstitutional and void if it is not. Such a law then cannot be enforced by the government. The power reaches laws of Parliament and of the State legislatures alike.

• Supremacy of the Constitution: No organ of government can act beyond the limits the Constitution sets.
• Federal balance: A State can challenge a Central law that strays into the State List, and the reverse.
• Fundamental Rights: A law that takes away a right in Part III can be struck down.

Constitutional Provisions Behind Judicial Review

The phrase "judicial review" appears nowhere in the Constitution. The power follows from the fact that India has a written Constitution and that several articles let the courts strike down what conflicts with it.

• Article 13: Any law inconsistent with the Fundamental Rights is void to the extent of the inconsistency.
• Articles 32 and 226: The Supreme Court and the High Courts enforce the Fundamental Rights through writs. Moving Article 32 in the Constituent Assembly on 9 December 1948, Dr B.R. Ambedkar called it the very soul of the Constitution and the very heart of it.
• Articles 131 to 136 and 143: The Court decides federal disputes, hears appeals and advises the President on questions of law.
• Article 246: The division of legislative powers between the Union and the States, which the courts police.

A constitutional challenge to a law or executive order can rest on three grounds: it infringes a Fundamental Right, it is outside the competence of the authority that made it, or it is repugnant to another provision of the Constitution. The Court's full jurisdiction is explained in the article on Supreme Court jurisdiction.

Judicial Review in India, the USA and the UK Compared

India's judicial review is narrower than the American version. The US Constitution protects rights through "due process of law", which lets its Supreme Court strike down laws not only as beyond power but also as unreasonable, and critics have called that court a third chamber of the legislature. India's Article 21 speaks instead of procedure established by law.

The gap narrowed in Maneka Gandhi v. Union of India (1978), which held that the procedure under Article 21 must be just, fair and reasonable and that Articles 14, 19 and 21 work together. India thus combines the American idea of judicial supremacy and the British idea of parliamentary supremacy without adopting either in full, a synthesis of the two.

Scope of Judicial Review: Amendments, Laws and Executive Action

Review of Amendments and of Central and State Laws

Parliament may amend any part of the Constitution under Article 368, including the Fundamental Rights, but it may not alter the basic structure. An amendment is therefore reviewed on one question: does it damage a basic feature? The test applies to amendments made after 24 April 1973, the date of the Kesavananda Bharati judgment.

Ordinary laws are reviewed on the three grounds of Fundamental Rights, legislative competence and conflict with the Constitution. The federal ground is common: if the Centre makes a law on a subject that, in some States' view, belongs to the State List, those States can go to the Supreme Court, which may declare the law unconstitutional. The review power extends to State laws too.

The Court asks whether a law is within power, not whether it is wise. It examines only the substantive question of competence and consistency, and does not sit in judgment on the reasonableness, suitability or policy of a law the way a legislature would.

President's Rule, Pardons and Assent to Bills Before the Courts

Executive action is also reviewable, including actions once thought to be beyond the courts. The 38th Amendment of 1975 made the President's satisfaction in imposing President's Rule final and unchallengeable; the 44th Amendment of 1978 deleted that provision.

• President’s Rule (S.R. Bommai, 1994): A proclamation under Article 356 is subject to judicial review; the President’s satisfaction must rest on relevant material, and the Centre must show that it exists. The Court does not test the adequacy of the material, only its relevance.
• Pardons: The President’s pardoning power, exercised on the advice of the Union Cabinet, is not subject to judicial review except where the decision is arbitrary, irrational, mala fide or discriminatory.
• Assent to Bills: In its 2025 opinion the Court held that the decisions of the Governor and the President on assent are not justiciable before a law comes into force, though prolonged, unexplained inaction can be met with a limited direction to act.

Judicial Review of Amendments: Shankari Prasad to Kesavananda Bharati

Shankari Prasad, Sajjan Singh and Golak Nath Cases

The contest began within a year of the Constitution. The First Amendment, moved by Prime Minister Jawaharlal Nehru and enacted on 18 June 1951, curtailed the right to property and added Article 31B and the Ninth Schedule, which shielded listed laws from challenge on the ground of Fundamental Rights.

• Shankari Prasad (1951): The Court upheld the First Amendment and held that “law” in Article 13 means ordinary law, not a constitutional amendment, so Parliament could amend Fundamental Rights.
• Sajjan Singh (1965): The Court took the same view.
• Golak Nath (1967): An eleven-judge bench reversed course while examining the Seventeenth Amendment, which had put certain State Acts in the Ninth Schedule. Fundamental Rights, it said, had a “transcendental and immutable” position, and an amendment was a law under Article 13 that could not abridge them.

24th Amendment and the Kesavananda Bharati Case (1973)

Parliament answered Golak Nath with the 24th Amendment of 1971, which amended Articles 13 and 368 to declare that Parliament may abridge or take away any Fundamental Right and that such an amendment is not a law under Article 13. The 25th and 29th Amendments followed on property and land laws.

In Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by the largest bench ever formed, 13 judges, the Court overruled Golak Nath and upheld the 24th Amendment. But by a margin of 7 to 6 it held that the power to amend does not include the power to alter the basic structure of the Constitution. It struck down the part of the 25th Amendment that barred courts from asking whether a law truly gave effect to the Directive Principles.

Elements of the Basic Structure Named by the Court

The Court has never given a complete definition of the basic structure. It has instead named features case by case, and has reserved to itself the right to decide whether a matter is part of it. In Kesavananda, Chief Justice S.M. Sikri listed the supremacy of the Constitution, the republican and democratic system, the secular character, the separation of powers and the federal character.

Later judgments added the rule of law, free and fair elections, the independence of the judiciary, a limited power to amend, and the balance between Fundamental Rights and Directive Principles, among others. The powers of the Supreme Court under Articles 32, 136, 141 and 142 are counted as well, and the basic structure is now counted among the salient features of the Constitution.

Doctrine of Basic Structure After Kesavananda

Indira Gandhi v Raj Narain and the 39th Amendment

The 39th Amendment of 1975 inserted Article 329A, which placed disputes over the election of the President, the Vice-President, the Prime Minister and the Speaker beyond the courts. In Indira Nehru Gandhi v. Raj Narain (1975) the Court applied the new test and struck down clauses (4) and (5) of Article 329A, which had made the existing election law inapplicable to the Prime Minister's and Speaker's elections and declared pending proceedings void.

The case added the rule of law, which depends on effective judicial review, to the basic features. Article 329A itself was later omitted by the 44th Amendment of 1978.

42nd Amendment and the Minerva Mills Case (1980)

Parliament's next reply was the 42nd Amendment of 1976, which declared that there was no limit on Parliament's constituent power and that no amendment could be questioned in any court. In Minerva Mills v. Union of India (1980) the Court struck this down because it excluded judicial review, itself a basic feature.

The Court's reasoning is the key to Mains questions on Article 368: since the Constitution gave Parliament a limited amending power, Parliament cannot use that power to enlarge it into an absolute one. "The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one." A limited amending power is therefore itself a basic feature.

Ninth Schedule and the I.R. Coelho Case (2007)

Article 31B protects the Acts in the Ninth Schedule from challenge on the ground of any Fundamental Right. The Schedule held 13 Acts in 1951 and 282 by 2013, most of them State land reform laws. In Waman Rao (1981) the Court held that the basic structure test applies to amendments made after 24 April 1973.

In I.R. Coelho v. State of Tamil Nadu, decided in January 2007 by a nine-judge bench, the Court held that there can be no blanket immunity. Laws placed in the Ninth Schedule after 24 April 1973 can be challenged if they violate the rights in Articles 14, 15, 19 and 21 or the basic structure, because judicial review is a basic feature that cannot be removed by listing a law in a Schedule.

Bommai and NJAC: Secularism and Judicial Independence as Basic Features

Later benches kept adding to the list of basic features. In S.R. Bommai v. Union of India (1994) the Court held that secularism is one of the basic features of the Constitution, a positive concept of equal treatment of all religions. A State government that pursues non-secular policies acts contrary to the constitutional mandate and renders itself amenable to action under Article 356, and the same case brought President's Rule itself under judicial review.

The independence of the judiciary is a basic feature, and it decided the fate of the 99th Amendment. On 16 October 2015 a five-judge bench struck down the Amendment and the National Judicial Appointments Commission Act by a 4:1 majority, holding that an executive role in appointing judges would undermine that independence.

The judgment shows the same logic as Kesavananda and Minerva Mills: an amendment is valid only if it leaves the Constitution's identity intact. The collegium it restored, and its working, are explained in the article on the collegium system.

Judicial Activism, Judicial Overreach and Their Limits

Public Interest Litigation and Judicial Activism

In India, judicial activism describes courts taking an active role in protecting rights and correcting the other organs of government, and its chief instrument is public interest litigation. PIL let the courts hear the blinding of jail inmates by the police, inhuman working conditions in stone quarries and the sexual exploitation of children, making rights meaningful for the poor.

• Executive accountability: The Court directed the CBI to investigate politicians and bureaucrats in the hawala case, the Narasimha Rao case and the illegal allotment of petrol pumps.
• Electoral reform: Candidates must file affidavits on assets, income and education so that voters can choose on accurate knowledge.
• Governance: Powers once thought beyond review, such as those of the President and Governors, were brought within it.

Judicial Overreach, Separation of Powers and Judicial Restraint

The same activism draws criticism. It has overburdened the courts, and it has blurred the line between the judiciary and the other two organs: reducing air or sound pollution, investigating corruption or reforming elections are matters for the administration under the legislature's supervision. Critics call this judicial overreach.

The Constitution rests on a limited separation of powers with checks and balances: Parliament is supreme in making laws and amending the Constitution, the executive in implementing them, and the judiciary in settling disputes and testing laws against the Constitution. Alladi Krishnaswami Ayyar warned the Constituent Assembly on 23 November 1949 that judicial independence should not let the judiciary act as a super-legislature or super-executive.

Judicial review has limits the courts themselves observe. The Court does not review the wisdom or policy of a law, only its constitutionality; in President's Rule cases it looks at the relevance of the material, not its adequacy; and in 2025 it declined to set timelines for assent to Bills, holding that courts cannot create a "deemed assent" by relying on Article 142.

Restraint also runs the other way: because judicial review and the separation of powers are both basic features, neither Parliament nor the courts can remove the other's role. The result is the balance the Constitution intends, in which each organ respects the powers and jurisdiction of the others.

Sources and Further Reading

• Legislative Department, Ministry of Law and Justice: The Constitution of India
• NCERT: Indian Constitution at Work, Class 11, Chapter 6, Judiciary
• Supreme Court of India: Constitution
• Supreme Court of India: Opinion in Special Reference No. 1 of 2025 (20 November 2025)
• Lok Sabha Secretariat: Constituent Assembly Debates, Volume VII, 9 December 1948 (Article 32)
• Wikipedia: Judicial review in India
• Wikipedia: Basic structure doctrine
• Wikipedia: Kesavananda Bharati v. State of Kerala
• Wikipedia: Golaknath v. State of Punjab
• Wikipedia: Maneka Gandhi v. Union of India
• Wikipedia: Public interest litigation in India
• Wikipedia: S. R. Bommai v. Union of India
• Wikipedia: First Amendment of the Constitution of India