Critically evaluate the efficacy of judicial review in India, with reference to its constitutional foundations, scope of application, and its impact on the balance of power among the organs of government.

Judicial Review in India: Constitutional Foundations, Scope, and Impact on the Balance of Power

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Introduction

Judicial review is a cornerstone of India’s constitutional architecture. It empowers the judiciary to examine the constitutionality of legislative enactments and executive actions and to strike them down if they violate the Constitution. Rooted in the idea of constitutional supremacy, judicial review ensures that all organs of government—legislature, executive, and judiciary—operate within their prescribed boundaries.

This essay critically evaluates the efficacy of judicial review in India, examining its constitutional foundations, evolving scope, and practical implications for the separation of powers. While judicial review has strengthened constitutionalism and protected individual rights, it also raises concerns about judicial overreach, institutional legitimacy, and the blurring of functional boundaries between the three branches of government.

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1. Constitutional Foundations of Judicial Review

Unlike the United States Constitution, the Indian Constitution does not explicitly use the term ‘judicial review’, yet it clearly provides for it through several articles:

• Article 13: Declares that any law inconsistent with or in derogation of fundamental rights is void. This is the bedrock of judicial review, particularly of pre-constitutional and post-constitutional laws.
• Article 32: Empowers the Supreme Court to enforce Fundamental Rights, described by Dr. B.R. Ambedkar as the “heart and soul” of the Constitution.
• Article 226: Grants High Courts power to issue writs for the enforcement of rights and “for any other purpose.”
• Article 131, Article 136, and Article 142 further provide avenues for judicial intervention and oversight.

Together, these provisions embed judicial review as a structural feature of Indian constitutionalism, ensuring that no organ of the state is above the law.

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2. Scope and Dimensions of Judicial Review

Judicial review in India extends to three broad domains:

A. Legislative Action

• Courts examine the constitutionality of laws passed by Parliament or State legislatures.
• The test may include:
  • Violation of Fundamental Rights,
  • Contravention of federal division of powers, or
  • Breach of the Basic Structure Doctrine (as laid down in Kesavananda Bharati v. State of Kerala, 1973).

B. Executive Action

• The judiciary reviews executive decisions under the principles of administrative law, focusing on:
  • Procedural fairness,
  • Reasonableness and proportionality, and
  • Non-arbitrariness (grounded in Article 14).

C. Constitutional Amendments

• While originally not reviewable (as per Shankari Prasad, 1951), the landmark Kesavananda Bharati case (1973) made even constitutional amendments subject to judicial review if they violated the basic structure of the Constitution.

Thus, Indian judicial review is expansive in scope, including not only substantive and procedural legality, but also normative and structural constitutional principles.

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3. Efficacy of Judicial Review: Contributions and Achievements

A. Safeguard Against Majoritarianism

• Judicial review acts as a counter-majoritarian check, protecting minority rights and individual freedoms.
• Landmark cases such as Maneka Gandhi v. Union of India (1978) expanded the interpretation of Article 21, asserting that due process is intrinsic to life and liberty.

B. Constitutionalism and Rule of Law

• The judiciary’s power of review has been central in upholding the Constitution as a living document.
• Cases like Minerva Mills v. Union of India (1980) reaffirmed the balance between Fundamental Rights and Directive Principles, safeguarding the basic structure.

C. Accountability and Governance

• Judicial review enables checks on arbitrary executive action. For instance, the court’s intervention in the 2G Spectrum case (2012) and Coalgate helped enforce transparency and public accountability.

D. Social Justice Jurisprudence

• Through Public Interest Litigations (PILs), judicial review has facilitated access to justice, especially for marginalized groups, expanding the reach of socio-economic rights (e.g., Right to Food, Right to Education, Environmental Protection).

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4. Challenges and Criticisms of Judicial Review

Despite its normative contributions, judicial review in India is not without structural and normative concerns:

A. Judicial Overreach and Encroachment

• Critics argue that the Indian judiciary has increasingly engaged in policy-making, venturing into domains reserved for the legislature and executive.
• Instances include:
  • Bans on firecrackers,
  • Directions on economic policies,
  • Interventions in administrative appointments (e.g., NJAC case).
• This raises concerns about judicial usurpation of democratic functions, undermining popular sovereignty.

B. Lack of Democratic Accountability

• Judges are unelected, yet judicial review allows them to nullify laws passed by democratically elected bodies.
• The absence of transparency in judicial appointments (Collegium system) and internal accountability mechanisms limits institutional legitimacy.

C. Inconsistency and Delay

• Judicial review is often marked by doctrinal ambiguity and delays in constitutional adjudication.
• Example: The Electoral Bonds Case was kept pending for years, despite its critical relevance to democratic financing.

D. Political Controversy and Institutional Tensions

• The NJAC case (2015) is emblematic of the judiciary resisting executive oversight in appointments, leading to inter-institutional tensions.
• Frequent conflicts over judicial transfers, appointment delays, and Centre-State legal disputes point to a strained balance among institutions.

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5. Comparative and Theoretical Perspectives

From a comparative constitutional perspective:

• In the U.S., judicial review was established via Marbury v. Madison (1803), with a strong tradition of judicial independence.
• The Indian model, though inspired by the American precedent, reflects greater substantive and procedural flexibility, enabling socio-economic rights enforcement, which is absent in many common-law systems.

Theoretically, Indian judicial review resonates with Ronald Dworkin’s rights-based approach and John Rawls’ idea of justice, but risks becoming a tool of juristocracy, as warned by critics like Ran Hirschl.

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6. Reform and the Way Forward

To preserve the efficacy of judicial review while maintaining constitutional balance, the following reforms are essential:

• Codification of judicial norms and development of clear jurisprudential standards to avoid arbitrariness.
• Revamping the appointment process to enhance transparency and public confidence.
• Institutionalizing a constitutional court or constitutional bench to expedite key constitutional cases.
• Regular judicial audits, review mechanisms, and strengthening the doctrine of restraint to prevent excessive interventionism.

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Conclusion

Judicial review in India has been a vital instrument for constitutional governance, enabling the judiciary to act as sentinel of the Constitution and a bulwark against executive and legislative excesses. While it has contributed to progressive jurisprudence and democratic accountability, its growing footprint has raised legitimate concerns about judicial supremacy, lack of transparency, and overreach.

A delicate balance must be struck—preserving the independence and vigor of judicial review, while ensuring it functions within its institutional and constitutional boundaries. As India’s democracy matures, recalibrating the practice of judicial review in the spirit of constitutional morality, institutional dialogue, and the rule of law remains imperative.