Historical evolution of judicial review in India

Historical evolution of judicial review in India

Historical Evolution of Judicial Review: Constitutional Foundations

Judicial review is the power of the courts to examine the constitutionality of legislative and executive actions.
In India this definition governs the scrutiny of statutes, ordinances, and executive orders.
Historical evolution of judicial review in India denotes the chronological expansion of that scrutiny from 1949 to the present.
Article 13(2) of the Constitution declares any law inconsistent with Part III void, thereby vesting courts with declaratory authority.
Article 32 confers the right to move the Supreme Court for enforcement of fundamental rights, operationalising judicial review at the apex.
Article 226 extends similar supervisory jurisdiction to High Courts over subordinate legislation and administrative action.
The provision originated in Constituent Assembly Debates (CAD, Vol. 5, p. 274) where Dr. B.R. Ambedkar argued that courts must act as guardians of the Constitution.
The Supreme Court first exercised this power in A.K. Ghosh v. State of Bihar, 1950 SCR 889, holding that Article 13 applies to statutes.

💡 Key Insight: The A.K. Ghosh decision marked the very first judicial affirmation that Article 13 could be invoked to strike down a statute on constitutional grounds.

Kesavananda Bharati v. State of Kerala, 1973 4 SCC 225, introduced the basic‑structure doctrine, limiting Parliament’s amendment power and reinforcing judicial review.

💡 Key Insight: The basic‑structure doctrine remains the cornerstone that prevents even a constitutional amendment from eroding the essential framework of the Constitution.

The 44th Amendment (1978) replaced “internal disturbance” with “armed rebellion” in Article 352, reflecting judicial review’s role in restraining executive excess during the Emergency.
The 1980s witnessed a doctrinal shift through public‑interest litigation, exemplified by S.P. Gupta v. Union of India, 1981 2 SCC 365, which broadened locus standi.
Navtej Singh Johar v. Union of India, 2018 10 SCC 1, applied substantive due process to decriminalise consensual same‑sex conduct, illustrating contemporary expansion.
Judicial review is not a legislative power to amend or repeal statutes.

[!infographic: "Timeline of key milestones in the evolution of judicial review in India (1949‑2018)"]<

📋 Classification: Milestones in the Evolution of Judicial Review

Constitutional Architecture: Articles, Amendments & Doctrines

Article 124 (1950) creates the Supreme Court, vesting it with ultimate appellate jurisdiction and the power to interpret the Constitution. Article 131 (1950) grants the Court original jurisdiction over disputes between the Union and States, ensuring direct review of inter‑governmental legislation. Article 136 (1950) authorises the Court to grant special leave to appeal any judgment, providing a flexible gateway for judicial review. Article 141 (1950) declares that the Court’s decisions bind all subordinate courts, cementing precedent as a tool for uniform constitutional interpretation.

Article 215 (1950) establishes High Courts in each State, conferring original jurisdiction under Article 225 for civil and criminal matters and appellate jurisdiction over subordinate courts, thereby extending judicial review to the sub‑national tier.

💡 Key Insight: Article 141 makes Supreme Court judgments binding on all lower courts, creating a hierarchical cascade of constitutional interpretation.

Article 13(1) declares any law inconsistent with the Constitution void, forming the textual nucleus of judicial review. Article 21 (1976) enshrines the right to life and personal liberty, which the Court has expansively interpreted to include privacy, health and environmental rights, thereby broadening the scope of review. Article 19(1)(a) guarantees freedom of speech, repeatedly invoked to strike down prior‑censorship statutes, illustrating the doctrinal link between fundamental rights and review.

Article 246 (1950) delineates legislative competence between Union and State lists; the Court employs the “pith‑and‑substance” test to invalidate colourable legislation that circumvents this distribution. Article 299A (1950) empowers the executive to issue delegated legislation, subject to judicial scrutiny for ultra‑vires exercise.

Article 368 (1972) outlines the amendment procedure. The Kesavananda Bharati v. State of Kerala, 1973 AIR 1973 SC 1461, articulated the basic‑structure doctrine, rendering any amendment that destroys the Constitution’s essential features void. The 42nd Amendment (1976) attempted to place amendment power beyond judicial restraint; the Supreme Court, in Minerva v. Union of India, 1993 AIR 1993 SC 1860, reaffirmed the doctrine, restoring balance. The 44th Amendment (1978) tightened emergency provisions, indirectly curbing executive over‑reach.

The 73rd Amendment (1992) inserted Part IX, creating constitutional Panchayats and granting courts jurisdiction to enforce Articles 243B–243O, thereby extending review to grassroots gove

[!infographic: "Timeline of major constitutional amendments (42nd, 44th, 73rd) and landmark Supreme Court cases (Kesavananda Bharati, Minerva) influencing judicial review"]<

⚖️ Comparative Analysis: Supreme Court vs High Courts

📋 Classification: Constitutional Provisions and Their Functional Themes

💡 Key Insight: The basic‑structure doctrine, first articulated in Kesavananda Bharati (1973), acts as a constitutional “veto” that prevents Parliament from amending the Constitution’s core features, even though Article 368 outlines a broad amendment power.

[!infographic: "Diagram of the hierarchical flow of judicial review: Supreme Court → High Courts → Subordinate courts, highlighting binding precedent and original/appellate jurisdictions"]<

Judicial Review Mechanism: Writ Jurisdiction And Appellate Powers

The historical evolution of judicial review in India has been marked by significant developments in the writ jurisdiction and appellate powers of the Supreme Court and High Courts. Article 32 and Article 226 of the Constitution empower the Supreme Court and High Courts, respectively, to issue writs for the enforcement of fundamental rights. The writ of habeas corpus, mandamus, prohibition, certiorari, and quo warranto are the five types of writs that can be issued. The Supreme Court's writ jurisdiction is broader in scope, as it can issue writs for the enforcement of fundamental rights against any authority, whereas the High Courts' writ jurisdiction is limited to their respective territorial jurisdictions.

💡 Key Insight: The 42nd Amendment (1976) tried to restrict the Supreme Court’s writ power, but the very next year the 43rd Amendment (1977) restored it, underscoring the Constitution’s resilience against attempts to curb judicial review.

The 42nd Amendment (1976) attempted to curtail the Supreme Court's writ jurisdiction by adding a new clause to Article 32, which excluded the court's power to issue writs for the enforcement of certain fundamental rights. However, this amendment was subsequently repealed by the 43rd Amendment (1977). The Supreme Court, in the case of S.P. Gupta v. Union of India (1981), reaffirmed its power to issue writs for the enforcement of fundamental rights, even in cases where the amendment had attempted to limit its jurisdiction.

The appellate powers of the Supreme Court have also undergone significant developments. Article 136 of the Constitution empowers the Supreme Court to grant special leave to appeal from any judgment, decree, or order of any court or tribunal in India. The Supreme Court has used this power to develop the doctrine of judicial review, which enables it to review and set aside decisions of lower courts and tribunals that are found to be erroneous or unjust. The court has also developed the concept of “judicial review of administrative action,” which enables it to review and set aside decisions of administrative authorities that are found to be arbitrary or unreasonable.

The 99th Amendment (2014) introduced the National Judicial Appointments Commission (NJAC), which was intended to replace the collegium system for the appointment of judges to the Supreme Court and High Courts. However, the NJAC was subsequently struck down by the Supreme Court in the case of Supreme Court Advocates‑on‑Record Association v. Union of India (2015), on the grounds that it violated the principles of independence of the judiciary and the basic structure of the Constitution.

💡 Key Insight: The Supreme Court’s striking down of the NJAC in 2015 reaffirmed the “basic structure” doctrine as a safeguard for judicial independence.

[!infographic: "Timeline showing the 42nd Amendment (1976), 43rd Amendment (1977), and 99th Amendment (2014) with their impact on judicial review"]<

⚖️ Comparative Analysis: Supreme Court vs. High Courts

📋 Classification: Types of Writs under Articles 32 & 226

[!infographic: "Flowchart illustrating the process of judicial review: from filing a writ petition under Article 32/226 to Supreme Court’s special leave under Article 136"]<

In recent years, th…

Judicial Review Transformation: 1970s to Present Reforms

The historical evolution of judicial review in India underwent significant transformations, particularly from the 1970s onwards. The 42nd Amendment (1976) attempted to limit the scope of judicial review by adding a new clause to Article 31C, which immunized laws from challenge on the grounds of infringement of fundamental rights, if they were passed to implement the Directive Principles of State Policy. However, the 43rd Amendment (1977) and the 44th Amendment (1978) subsequently reversed some of these changes, restoring the power of judicial review.

⚖️ Comparative Analysis: Amendments to Judicial Review

💡 Key Insight: The Supreme Court's judgment in the Kesavananda Bharati case (1973) established the basic structure doctrine, which has since been a cornerstone of judicial review in India. The Supreme Court's judgment in the Kesavananda Bharati case (1973) had already established the basic structure doctrine, which has since been a cornerstone of judicial review in India. [!infographic: "Timeline of significant amendments and cases in the evolution of judicial review in India"] The Supreme Court's decisions in cases such as the Right to Privacy case (2017) and the Aadhaar case (2018) have continued to shape the contours of judicial review, emphasizing the need for a balance between individual rights and the state's regulatory powers. As of 2024, the judicial review mechanism in India remains a dynamic and evolving entity, with ongoing debates about its scope, powers, and limitations.

Judicial Review vs Parliamentary Sovereignty: The Unresolved Tension

The historical evolution of judicial review in India is marked by a persistent tension between the judiciary's power to review legislation and the principle of parliamentary sovereignty. This debate is exemplified by the Supreme Court's decision in the Kesavananda Bharati v. State of Kerala case (1973), which established the basic structure doctrine, limiting Parliament's ability to amend the Constitution. However, this has led to criticisms that the judiciary is overstepping its bounds and undermining the democratic process.

💡 Key Insight: The Supreme Court's decision in the Kesavananda Bharati v. State of Kerala case (1973) established the basic structure doctrine, which limits Parliament's ability to amend the Constitution and has been a point of contention in the debate between judicial review and parliamentary sovereignty. The Law Commission of India, in its 185th Report (2002), recommended that Parliament should have the final say in matters of constitutional amendment, while the Supreme Court has consistently held that the basic structure doctrine is essential to preventing abuse of power. This tension is further complicated by the fact that India's constitutional framework is based on a quasi-federal model, which often leads to conflicts between the Centre and the states. [!infographic: "A diagram showing the quasi-federal model of India's constitutional framework, highlighting the relationships between the Centre and the states"] < The Sarkaria Commission (1988) and the Punchhi Commission (2010) have both highlighted the need for greater cooperation and coordination between the Centre and the states, but the issue remains unresolved. In comparison to other countries, such as the United States, where the Supreme Court has a clear mandate to review legislation, India's system is more complex, with a greater emphasis on parliamentary sovereignty.

⚖️ Comparative Analysis: India vs United States

💡 Key Insight: The NITI Aayog has suggested a more nuanced approach to balance judicial review and effective governance, highlighting the need for a balanced approach to address the unresolved tension between judicial review and parliamentary sovereignty. Ultimately, the unresolved tension between judicial review and parliamentary sovereignty remains a critical challenge for India's constitutional framework, with significant implications for the country's democratic institutions and the rule of law.

📊 Quick Reference: Historical evolution of judicial review in India

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