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

Judicial Review in India: Meaning and Constitutional Basis

Purpose and Grounds of Judicial Review

The phrase "judicial review" does not appear anywhere in the Constitution. The power rests on a written Constitution, on the Fundamental Rights that bind the legislature, and on a group of articles that give the courts their jurisdiction.

The Supreme Court acts as the final interpreter of the Constitution, so its reading of an article binds every other court.

Three reasons make the power necessary:

• Supremacy of the Constitution: No organ of government may act beyond the limits that the Constitution sets.
• Federal equilibrium: A State can challenge a Union law that, in its view, belongs to the State List, and the Union can challenge a State law that strays beyond its field.
• Protection of Fundamental Rights: A law that takes away a right in Part III can be struck down.

A challenge to a law or order can rest on three grounds. The law may infringe the Fundamental Rights in Part III, it may be outside the competence of the authority that made it, or it may be repugnant to a provision of the Constitution. The review power covers laws of State legislatures as well as laws of Parliament.

Constitutional Provisions Behind Judicial Review

Several articles confer the power explicitly, and others supply the rules that the courts apply when they review.

Article 13 deserves a closer look. Clause (1) makes pre-Constitution laws void to the extent they conflict with Part III, and clause (2) forbids the State from making any law that takes away or abridges the rights in that Part. Clause (3) defines "law" widely, so that an ordinance, an order, a rule, a notification, and even a custom or usage having the force of law can be tested. Clause (4) states that Article 13 does not apply to an amendment made under Article 368.

Under Article 137 the Supreme Court can review its own judgments, and a larger bench can depart from an earlier decision, as the 13-judge bench in Kesavananda Bharati did with Golak Nath.

Article 32 was debated and adopted 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", adding that without it the Constitution would be a nullity. Because it is placed in Part III, it can be suspended only as the Constitution itself provides.

The Supreme Court and the High Courts also use their writ powers differently. A High Court can use them "for any other purpose" as well as for rights, so its writ jurisdiction under Article 226 reaches beyond the Fundamental Rights that Article 32 protects.

Judicial Review in India, the USA and the UK Compared

Neither Constitution names the power, yet India's judicial review is narrower than the American model. The difference lies in the standard the court applies. The American Constitution speaks of "due process of law", which lets the US Supreme Court declare a law void not only because it is outside power but also because it is unreasonable. Critics have called that court a "third chamber" of the legislature.

Article 21 of the Indian Constitution instead speaks of "procedure established by law". Under that wording, as first read, the Indian Supreme Court asked only whether the authority had the power to make the law, not whether the law was reasonable, suitable or wise as policy.

In the United States, the power was inferred from the structure of the Constitution and confirmed in Marbury v. Madison in 1803, the first case in which the Court struck down a law as unconstitutional. In the United Kingdom the position is different, because Parliament is sovereign. The legislative body is supreme over the executive and the judiciary and can change or repeal any earlier legislation.

The gap between India and the USA narrowed after Maneka Gandhi v. Union of India (1978). A seven-judge bench overruled the narrow reading of Article 21 in A.K. Gopalan (1950) and held that the procedure must be just, fair and reasonable, and that Articles 14, 19 and 21 work together as the "golden triangle". The Court thereby brought in the substance of American due process, though not its words. India therefore recognises judicial supremacy to a limited extent and does not fully follow the British principle of parliamentary supremacy, because the written Constitution, federalism, Fundamental Rights and judicial review all limit Parliament. What exists is a synthesis of both.

Scope of Judicial Review: Amendments, Laws and Executive Action

Ordinances, Presumption of Constitutionality and Concrete Cases

The Court reviews three kinds of enactment. Ordinary laws of Parliament and the State legislatures are tested for a breach of Fundamental Rights, for legislative competence and for repugnancy to the Constitution. Ordinances are reviewed too, since Article 13(3)⁠(a) counts an Ordinance as "law" and since a President's satisfaction in promulgating one can be questioned on the ground of mala fides, as the Court held in the Cooper case (1970). The 38th Amendment of 1975 made that satisfaction final and beyond review, but the 44th Amendment of 1978 deleted the provision. Constitutional amendments are the third kind, and they are reviewed on one question, namely whether the amendment damages a basic feature of the Constitution.

The Court begins from a presumption in favour of the constitutionality of a statute. In Charanjit Lal v. Union of India (1950), Justice Fazl Ali held that "the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles". Chief Justice S.H. Kapadia, in a lecture on 16 April 2011, urged the judiciary to maintain self-restraint, respect the separation of powers and not overtake the legislative function.

India also follows the American method of review, in which a court examines a law only in a concrete case or controversy and only when the law is in effect. It differs from the French model, in which review takes place before a law comes into force.

President's Rule, Emergency, Pardons and Assent to Bills

Executive action is also open to review, including powers of the President and Governors once thought to lie beyond the courts.

• President's Rule: The 38th Amendment of 1975 made the President's satisfaction under Article 356 final and conclusive, and the 44th Amendment of 1978 deleted that provision. In S.R. Bommai v. Union of India (1994) the Court held that a proclamation is subject to judicial review. The satisfaction must rest on relevant material, the burden is on the Centre to prove that such material exists, and a proclamation based on irrelevant or extraneous grounds, or found to be mala fide or perverse, can be struck down. The Court does not go into the correctness or adequacy of the material.
• National Emergency: The 38th Amendment made the declaration immune from review, and the 44th Amendment removed that. In Minerva Mills (1980) the Court held that a proclamation can be challenged on the ground of mala fides, or because it rests on wholly extraneous and irrelevant facts or is absurd or perverse.
• Pardons: The President exercises the pardoning power on the advice of the Union Cabinet. The exercise is not subject to judicial review except where the decision is arbitrary, irrational, mala fide or discriminatory.
• Assent to Bills: In Special Reference No. 1 of 2025, decided on 20 November 2025, the Court advised that the decisions of the Governor and the President under Articles 200 and 201 are not justiciable at a stage before the Bill becomes law, that the President and Governors cannot be bound by judicially prescribed timelines, and that courts cannot read a "deemed assent" into the Constitution through Article 142.

Article 74(2) bars a court from inquiring into the advice that ministers gave the President, but the Bommai bench held that it does not bar scrutiny of the material on which the satisfaction rests.

Ouster Clauses: Kihoto Hollohan and L. Chandra Kumar

Parliament has sometimes tried to exclude the courts from a field by writing an ouster clause into a law. The Court has answered such attempts on principle. In Kihoto Hollohan v. Zachillhu (1992) a five-judge bench upheld the power of the Speaker to decide questions of disqualification under the Tenth Schedule but struck down the provision that excluded the Speaker's decision from judicial review. The Speaker's power, the Court noted, is a judicial power that must follow the rule of law, so review remained available on claims of bias and other principles of natural justice.

In L. Chandra Kumar v. Union of India (1997) a seven-judge bench dealt with the exclusion of High Court jurisdiction in service matters. It declared that the review power of the Supreme Court and the High Courts under Articles 32 and 226 is an integral and essential feature of the basic structure. A law that excludes High Court jurisdiction without setting up an alternative arrangement for judicial review therefore falls outside Parliament's constituent power.

The 42nd Amendment of 1976 had earlier curtailed the High Courts' review power and barred them from considering the validity of any Central law. The 43rd Amendment of 1977 restored the original position. It also omitted Article 32A, which had barred the Supreme Court from considering the validity of State laws in proceedings under Article 32, and Article 131A, which had given the Supreme Court exclusive jurisdiction on the validity of Central laws.

Judicial Review of Amendments: From Shankari Prasad to Kesavananda Bharati

Shankari Prasad, Sajjan Singh and Golak Nath Cases

The first dispute over the amending power arose within a year of the Constitution coming into force. The First Amendment, moved by Prime Minister Jawaharlal Nehru on 10 May 1951 and enacted on 18 June 1951, curtailed the right to property and added Article 31B and the Ninth Schedule, which protected listed land reform laws from challenge on the ground that they violated Fundamental Rights.

• Shankari Prasad (1951): The Court upheld the First Amendment. The power of Parliament under Article 368 includes the power to amend Fundamental Rights, and the word "law" in Article 13 includes only ordinary laws, not constitutional amendments.
• Sajjan Singh (1965): The Court upheld the 17th Amendment and took the same view. In a separate opinion, Justice J.R. Mudholkar raised the question whether a change in a basic feature of the Constitution could be regarded as a mere amendment or would amount to rewriting part of it. This was the first appearance of the idea of basic features.
• Golak Nath (1967): An eleven-judge bench, by a majority of 6 to 5 on 27 February 1967, reversed course while examining the 17th Amendment of 1964, which had inserted certain State Acts in the Ninth Schedule. Fundamental Rights, the Court held, have a "transcendental and immutable" position. An amendment under Article 368 is a "law" within Article 13, so an amendment that takes away or abridges a Fundamental Right is void.

The Golak Nath family held over 500 acres of farmland in Jalandhar, Punjab, and challenged a Punjab land law under which each brother could keep only thirty acres. A land reform dispute thus came to decide the nature of the amending power.

24th Amendment and the Kesavananda Bharati Case (1973)

Parliament answered Golak Nath with the 24th Amendment, in force from 5 November 1971. It 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 Amendment of 1971 curtailed the right to property, left the amount of compensation for acquired property to Parliament rather than the courts, and inserted Article 31C, which protected laws giving effect to certain Directive Principles from challenge. The 29th Amendment of 1972 placed two Kerala land reform Acts in the Ninth Schedule.

In Kesavananda Bharati v. State of Kerala the validity of these amendments came before the largest Constitution Bench ever formed, of 13 judges. The petition was filed in 1970 by the head of the Edneer Matha in Kerala against two land reform Acts of the State. The Court heard arguments over 68 days, from 31 October 1972 to 23 March 1973, and the bench gave eleven separate judgments. Judgment was delivered on 24 April 1973, and the main points are these.

• Golak Nath was overruled, and the 24th Amendment and the 29th Amendment were upheld.
• By a margin of 7 to 6 the Court held that the power to amend under Article 368 does not include the power to alter the basic structure or framework of the Constitution.
• The second part of section 3 of the 25th Amendment, which barred the courts from asking whether a law truly gave effect to the Directive Principles, was declared invalid.
• The right to property was not part of the basic structure and could be abridged. The Court also reserved to itself the right to decide whether a matter forms part of the basic structure.

Each ruling drew a reply from Parliament, and each reply came back before the Court.

Elements of the Basic Structure of the Indian Constitution

Features the Court Has Named

The Supreme Court has not defined the basic structure and has reserved to itself the right to decide whether a feature belongs to it. The list has grown from judgment to judgment and cannot be treated as closed. In Kesavananda Bharati the judges gave different lists of these features.

Judgments after 1973 added to these lists. The accepted present position is that Parliament can amend any part of the Constitution, including the Fundamental Rights, without affecting the basic structure. From the various judgments, the following have emerged as basic features:

• Constitutional identity: Supremacy of the Constitution; the sovereign, democratic and republican nature of the polity; the secular character; the federal character; unity and integrity of the nation; the parliamentary system.
• Rule-based government: Separation of powers among the legislature, the executive and the judiciary; the rule of law; free and fair elections; a limited power of Parliament to amend the Constitution.
• Judiciary: Judicial review; independence of the judiciary; effective access to justice; the powers of the Supreme Court under Articles 32, 136, 141 and 142.
• Rights and justice: Freedom and dignity of the individual; the principle of equality; the welfare state (socio-economic justice); harmony and balance between Fundamental Rights and Directive Principles; the principle of reasonableness.

Doctrine of Basic Structure After Kesavananda

Indira Gandhi v. Raj Narain and the 39th Amendment

The 39th Amendment, enacted on 10 August 1975 during the Emergency, placed the elections of the President, the Vice-President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the courts. It did so by inserting Article 329A, to pre-empt the hearing of Indira Gandhi's appeal against the Allahabad High Court's decision setting aside her election to the Lok Sabha. In Indira Nehru Gandhi v. Raj Narain (1975) a five-judge bench, with Chief Justice A.N. Ray, Justices H.R. Khanna, K.K. Mathew, M.H. Beg and Y.V. Chandrachud, struck down clauses (4) and (5) of Article 329A. Those clauses had made the existing election law inapplicable to the Prime Minister's and Speaker's elections and declared pending proceedings void.

The Court held that free and fair elections, separation of powers and judicial review are essential features that no amendment can abrogate. At the same time it recognised the limits of its own scrutiny into parliamentary proceedings under Article 122. Article 329A 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. It added clauses (4) and (5) to Article 368. Clause (4) provided that no amendment made under the article "shall be called in question in any court on any ground", and clause (5) declared that there should be "no limitation whatever" on Parliament's constituent power. Section 4 of the Amendment also changed Article 31C to give the Directive Principles in Part IV precedence over the Fundamental Rights in Part III.

In Minerva Mills Ltd. v. Union of India (1980), Chief Justice Y.V. Chandrachud led a bench that unanimously struck down clauses (4) and (5) of Article 368. By 4 to 1, with Justice P.N. Bhagwati dissenting, it held section 4 of the 42nd Amendment unconstitutional. The reasoning is the core of the doctrine.

"Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. ... 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, and the exclusion of review, which would let Parliament destroy the other features, is invalid.

On Article 31C the Chief Justice wrote that three Articles, 14, 19 and 21, stand between the freedom the Constitution promises and "the abyss of unrestrained power". The Constitution as printed today carries a note that these clauses of Article 368 were declared invalid by the Supreme Court in Minerva Mills.

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

Article 31B protects the Acts and Regulations listed in the Ninth Schedule from being declared void on the ground that they violate any Fundamental Right. It is wider than Article 31A, which saves five categories of law, because Article 31B protects any law placed in the Schedule whether or not it falls in those categories. The Schedule held 13 Acts and Regulations in 1951 and 282 by 2013, and the 2024 edition of the Constitution numbers its entries up to 284.

The State laws in the Schedule deal with land reforms and the abolition of the zamindari system, and the laws of Parliament deal with other matters. Entry 257A, inserted by the 76th Amendment in 1994, is the Tamil Nadu Act on reservation of seats in educational institutions and of posts in State services, placed there to protect its 69 per cent reservation from judicial review.

In Waman Rao v. Union of India (1981), a five-judge bench held that laws placed in the Ninth Schedule before the Kesavananda Bharati judgment could not be challenged on the ground that they violate Fundamental Rights, while the basic structure test applies to amendments made after 24 April 1973. The Court applied the doctrine of prospective overruling, first used in Golak Nath (1967), under which a decision operates in the future and does not reopen past ones.

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 from judicial review for laws placed in the Ninth Schedule. Laws placed there after 24 April 1973 are open to challenge if they violate the rights in Articles 14, 15, 19 and 21 or the basic structure, because judicial review is a basic feature and cannot be taken away by listing a law in a Schedule.

Bommai and NJAC: Secularism and Judicial Independence as Basic Features

Later benches kept adding to the list. In S.R. Bommai v. Union of India (1994), the bench held that secularism is one of the basic features of the Constitution, a positive concept of equal treatment of all religions, and that the proclamation of President's Rule is justiciable. Before the judgment Article 356 had been invoked more than 90 times, often on doubtful grounds, and Dr Ambedkar had hoped in the Constituent Assembly that it would remain a "dead letter".

The independence of the judiciary is a basic feature, and it decided the fate of the 99th Amendment. The Constitution (Ninety-ninth Amendment) Act, 2014, passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, inserted Article 124A and created the National Judicial Appointments Commission (NJAC) to replace the collegium system. The Commission would have had six members, namely the Chief Justice of India as chairperson, two senior Supreme Court judges, the Union Law Minister, and two eminent persons nominated by a committee of the Prime Minister, the Chief Justice and the Leader of Opposition in the Lok Sabha.

On 16 October 2015 a five-judge Constitution Bench, in Supreme Court Advocates-on-Record Association v. Union of India, struck down the Amendment and the NJAC Act by a 4 to 1 majority. Justices J.S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel held that the NJAC compromised the independence of the judiciary and went against the basic structure. Justice Jasti Chelameswar dissented, holding that the composition raised no constitutional issue and could act as a check on trade-offs within the collegium.

The collegium that was restored grew out of the three Judges Cases of 1981, 1993 and 1998. On 3 November 2015 the Court said that it was open to bringing greater transparency to the collegium system. A criticism of the judgment came on 8 December 2022 from Vice-President Jagdeep Dhankhar, who argued that striking down the Amendment through the basic structure doctrine was an encroachment by the judiciary on Parliament and a violation of separation of powers. The majority's answer is that an executive role in appointments would compromise the independence of the judiciary, which the basic structure protects.

Judicial Activism, Judicial Restraint and Judicial Overreach

Judicial Activism, Restraint and Overreach Defined

Judicial activism is a judicial philosophy under which courts go beyond the applicable law to consider the wider social consequences of their decisions. The term was introduced by Arthur Schlesinger Jr in a January 1947 article in Fortune magazine. In India the phenomenon grew after the Emergency, when the courts reached out to the public directly, and its chief instrument is public interest litigation. Judicial restraint is the opposite approach. The court favours the status quo, respects precedent, keeps to narrow rulings and may decline to hear a question that is better decided by another organ.

Critics who say that courts have entered a field that belongs to the legislature or the executive describe this as judicial overreach. The argument is that judicial activism not grounded in a textual commitment to the Constitution or a statute raises questions of accountability, since judges are not chosen by any democratic process and do not answer to the electorate.

Public Interest Litigation: Origins and Landmark Cases

Public interest litigation (PIL), also called social action litigation, is litigation undertaken to secure the public interest and is a relaxation of the traditional rule of locus standi, under which only a person whose own right is violated may approach a court. Around 1979 the Supreme Court began to hear cases brought by others on behalf of the aggrieved. Justice P.N. Bhagwati and Justice V.R. Krishna Iyer were among the first judges to admit them, and it was in S.P. Gupta v. Union of India that the Court defined the term in the Indian context.

• Hussainara Khatoon v. State of Bihar (1979): Newspaper reports in 1979 told of prisoners in Bihar who had spent longer in jail than the sentences for their offences. A petition in December 1979 before a bench headed by Justice Bhagwati led the Court to order free legal aid and fast hearings, and about 40,000 prisoners were released.
• Sunil Batra v. Delhi Administration (1980): A prison inmate of Tihar jail sent a note to Justice Krishna Iyer about torture of prisoners, and the judge converted it into a petition. The Court later abandoned the practice of treating letters as petitions.
• Bandhua Mukti Morcha v. Union of India (1984): Justice Bhagwati observed that the problems of the poor are qualitatively different from those that had occupied the Court so far, and that if the Court blindly followed the adversarial procedure in their case they would never be able to enforce their Fundamental Rights.
• Vishaka v. State of Rajasthan: A PIL filed after Bhanwari Devi was raped; the Court recognised sexual harassment at the workplace as a violation of Articles 14, 15 and 21 and issued guidelines for its prevention.
• M.C. Mehta v. Union of India: The Court shut several industries and allowed them to reopen only after controlled disposal of pollution in the Ganga basin.

A PIL may be filed under Article 32 in the Supreme Court or under Article 226 in the High Court. The Court has also warned against misuse. The petitioner must show that the petition serves the public interest and not a private gain, and the Court has said that "an action at law is not a game of chess" and that a litigant must come with clean hands.

Judicial Activism and Democracy: Accountability and Electoral Reform

Judicial activism has had three main effects on the political system. It has democratised the judicial system by giving access to the courts to groups as well as individuals. It has forced executive accountability. And it has tried to make the electoral system freer and fairer.

On 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. The hawala case began when the journalist Vineet Narain filed a PIL under Article 32 on 4 October 1993, alleging that the CBI and revenue authorities had failed to investigate the "Jain diaries". The judgment of 18 December 1997 gave a list of 26 pronouncements, the most important of which protected the CBI Director from removal by the government for two years.

On elections, the Court in 2002 and again in 2003 made it mandatory for every candidate to disclose criminal, financial and educational background in an affidavit filed with the Election Commission, so that voters can choose on accurate knowledge. The case arose from a PIL by professors of the Indian Institute of Management, Ahmedabad, whose association became the Association for Democratic Reforms.

The same activism has costs. 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 supervision of the legislatures. Democratic government depends on each organ respecting the powers and jurisdiction of the others.

Why PIL Grew and How Powerful the Supreme Court Is

PIL grew for identifiable reasons:

• Emergency and its aftermath: After the Emergency, during which governments tried to control the judiciary, the courts reached out directly to the public.
• Relaxed standing: The rule of locus standi was loosened, so that public-spirited citizens, social organisations and lawyers could file on behalf of the needy and the deprived.
• Informal procedure: Letters and telegrams to the court, and newspaper reports, were treated as petitions.
• Wide writ powers: Articles 32 and 226 let any person move the courts directly for the enforcement of rights; Article 226 reaches "any other purpose" as well.
• Constitutional commitments: Article 39A on free legal aid and the Directive Principles supplied the values that the courts read into rights.
• Failures of enforcement: In the hawala case the allegation was that the CBI and the revenue authorities had failed to investigate, and such complaints gave the courts an occasion to step in.

Whether the Supreme Court is "the world's most powerful judiciary" depends on the comparison, and there are points on each side.

• Points in favour: The right to approach the Court directly under Article 32; discretionary appeals from any tribunal under Article 136; orders for complete justice under Article 142; the power to strike down amendments through the basic structure; PIL and suo motu cognizance; binding precedent under Article 141; the power to punish contempt of itself and of other courts; and, through the collegium, a decisive voice in appointing its own judges.
• Points against: The Court tests constitutionality and not wisdom, Parliament can still amend the Constitution within the basic structure, the Court has held that it cannot create "deemed assent" under Article 142, and judges can be removed by the President on an address by Parliament for proved misbehaviour or incapacity.

In the United States, by comparison, the Supreme Court has held 176 Acts of Congress unconstitutional as of 2014, so strong review is not unique to India.

Judicial Legislation: Guidelines, Vishaka and Passive Euthanasia

Judicial legislation is the name given to rules that a court lays down in the absence of a law, so that they operate as law until the legislature acts. Two instances show how it works. In Vishaka the Court issued guidelines against workplace sexual harassment, drawing on Articles 14, 15 and 21. In Common Cause v. Union of India (2018) a five-judge bench held that "living wills" or advance medical directives allow consenting patients who are terminally ill or in a vegetative state to be passively euthanised, and stated that its decision becomes the law of the land until Parliament enacts a suitable law.

The roots lie in Aruna Shanbaug (2011). On 7 March 2011 the Court rejected the plea to discontinue the life support of Aruna Shanbaug, a nurse who had been in a vegetative state since an assault on 27 November 1973, but it legalised passive euthanasia, noting that it included withdrawing treatment or food that would allow the patient to live. Active euthanasia, such as the administration of lethal compounds, remains illegal. In January 2023 the Court streamlined the guidelines in Common Cause.

The case for such guidelines is that they protect rights where the legislature is silent and last only until it legislates. The case against is that law-making belongs to the legislature, and in 2014 a three-judge bench observed that the Aruna Shanbaug judgment was inconsistent in itself, because it says that euthanasia can be allowed only by the legislature and yet lays down guidelines. The concern is also that the judiciary becomes a super-legislature or super-executive, a warning that Alladi Krishnaswami Ayyar gave the Constituent Assembly on 23 November 1949.

Separation of Powers: Checks and Balances in India

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 deciding whether laws accord with the Constitution. Separation of powers is itself a basic feature, and Article 50, a Directive Principle, directs the State to separate the judiciary from the executive in the public services of the State.

The organs overlap in ways that a strict separation would forbid:

• Executive and legislature: In the parliamentary system the executive is responsible to the legislature for its policies and acts, so the two organs are joined and not walled off.
• Ordinances: The President can legislate by ordinance, though not when both Houses are in session, and a court can test the satisfaction behind one for mala fides.
• Courts and law-making: Court-made guidelines operate as law until the legislature acts.

Each organ also checks the others. The courts review laws, ordinances and executive action. Parliament can remove a Supreme Court judge by an address supported by a special majority of each House on grounds of proved misbehaviour or incapacity, following the procedure of the Judges Enquiry Act, 1968. The executive's role in appointments was the subject of the NJAC dispute. Conflict among the organs remains a recurrent theme of Indian politics.

Judicial Review Today: Current Position

Where the Law Stands

The leading statements of the position today are these:

• The basic structure doctrine of Kesavananda Bharati (1973) limits the amending power under Article 368. Parliament may amend by addition, variation or repeal, but may not destroy the basic features.
• Laws placed in the Ninth Schedule after 24 April 1973 remain open to review under I.R. Coelho (2007).
• The NJAC judgment of 2015 remains the leading authority on judicial independence as a basic feature.
• Decisions on assent to Bills under Articles 200 and 201 cannot be reviewed before a Bill becomes law, and courts cannot read a "deemed assent" into the Constitution (Special Reference No. 1 of 2025).

Sources

• Legislative Department, Government of India: The Constitution of India
• NCERT: Class 11 Political Science: Indian Constitution at Work, Chapter 6
• Supreme Court of India: Special Reference No. 1 of 2025, opinion of 20 November 2025
• Press Information Bureau: The Constitution of India, commemorative booklet, page 93
• Wikipedia: Judicial review in India
• Wikipedia: Basic structure doctrine
• Wikipedia: Kesavananda Bharati v. State of Kerala
• Wikipedia: I. C. Golaknath and Others v. State of Punjab and Anothers
• Wikipedia: Minerva Mills v. Union of India
• Wikipedia: Indira Gandhi v. Raj Narain
• Wikipedia: Maneka Gandhi v. Union of India
• Wikipedia: S. R. Bommai v. Union of India
• Wikipedia: National Judicial Appointments Commission
• Wikipedia: Collegium system
• Wikipedia: Public interest litigation in India
• Wikipedia: Judicial activism
• Wikipedia: Judicial restraint
• Wikipedia: Euthanasia in India
• Wikipedia: Aruna Shanbaug case
• Wikipedia: Association for Democratic Reforms
• Wikipedia: Hawala scandal
• Wikipedia: Marbury v. Madison
• Wikipedia: Judicial review in the United States
• Wikipedia: Parliamentary sovereignty
• Wikipedia: First Amendment of the Constitution of India
• Wikipedia: Twenty-fourth Amendment of the Constitution of India
• Wikipedia: Twenty-fifth Amendment of the Constitution of India
• Wikipedia: Thirty-ninth Amendment of the Constitution of India
• Wikipedia: Forty-second Amendment of the Constitution of India
• Wikipedia: Forty-fourth Amendment of the Constitution of India
• UPSC: Civil Services Examination question papers