Judicial review

The essentials

Judicial review is the power of courts to examine whether a law or executive action is consistent with the Constitution and to declare it void if it is not. The idea became famous through the American case Marbury v. Madison (1803). In India it rests on Articles 13, 32 and 226. Article 13 declares that any law inconsistent with Fundamental Rights is void to the extent of the inconsistency.

Key points

• Basis: Article 13 (laws inconsistent with Fundamental Rights are void), Article 32 (Supreme Court writs), Article 226 (High Court writs).
• Kesavananda Bharati v. State of Kerala (1973): Parliament can amend any part of the Constitution but cannot destroy its basic structure.
• Minerva Mills (1980): limited judicial review and the balance between Fundamental Rights and Directive Principles are part of the basic structure.
• L. Chandra Kumar (1997): judicial review by High Courts and the Supreme Court is part of the basic structure and cannot be excluded.
• Scope: review of legislation, of executive and administrative action, and of constitutional amendments.
• Doctrines used: severability (only the invalid part is struck down), eclipse, and reading down.
• Limits: courts do not judge the wisdom of a policy; they test legality, not desirability. Excessive interference is criticised as judicial overreach.

Exam tips

• Remember the Indian model sits between British parliamentary sovereignty and American judicial supremacy.
• Questions often ask which case introduced the basic structure doctrine – it is Kesavananda Bharati.

Common mistakes

• Believing judicial review lets courts strike down a law simply because it is unwise.
• Assuming constitutional amendments are beyond review; they can be tested against the basic structure.