Decoding The Weight Of Judicial Review in India

Judicial review in India is the power of the Supreme Court and High Courts to examine the constitutional validity of legislative acts, executive orders, and administrative decisions, and to invalidate those that are inconsistent with the Constitution. It is constitutionally grounded in multiple provisions: Article 13, which makes any law violating fundamental rights void; Article 32, which empowers the Supreme Court to issue writs for enforcement of fundamental rights; Article 226, which empowers High Courts to issue writs for enforcement of fundamental rights and "any other purpose"; and Articles 131–136, which define the court's jurisdiction over appeals and references. 

The power of judicial review is itself part of the basic structure of the Constitution — it cannot be removed by Parliament even through constitutional amendment, as held in L. Chandra Kumar v. Union of India (1997).

Representational Image: Judicial Review in India Explained

The scope of Indian judicial review differs from both the American model and the strict British parliamentary sovereignty model. Unlike the British Parliament, which is sovereign and whose acts cannot be struck down by courts, India's Parliament operates under constitutional constraints and judicial supervision. 

Unlike the American model, which employs "due process of law" as a substantive standard, India's Constitution originally used the more formal "procedure established by law" — but the Supreme Court in Maneka Gandhi v. Union of India (1978) expanded the Indian standard to require that procedure be fair, just, and reasonable, bringing it closer to (though not identical with) due process. 

The result is a system with strong judicial review powers anchored in specific constitutional text, applied with significant interpretive latitude by courts that have developed the scope of review through decades of jurisprudence.

What the Evidence Shows

• Article 226 gives High Courts broader writ jurisdiction than Article 32 gives the Supreme Court: Article 32 applies only to violations of fundamental rights, while Article 226 extends to "any other purpose" — enabling High Courts to review administrative actions that violate statutory rights or general law without necessarily rising to fundamental rights violations.
• The five types of writs available under Articles 32 and 226 are: Habeas Corpus (produce the body — used to challenge unlawful detention); Mandamus (command to perform a duty); Certiorari (to quash proceedings of lower courts or tribunals); Prohibition (to prevent inferior courts from exceeding jurisdiction); and Quo Warranto (to challenge a person's right to hold public office).
• Judicial review in India operates on three main grounds: a law is violative of a fundamental right; a law is outside the legislative competence of the enacting legislature (ultra vires); or a law is repugnant to another constitutional provision.
• Since Kesavananda Bharati v. State of Kerala (1973), courts can also review constitutional amendments — not just ordinary legislation — if they violate the basic structure of the Constitution; the Supreme Court has used this power to invalidate the 39th Amendment (1975) and parts of the 42nd Amendment (1976).
• In L. Chandra Kumar v. Union of India (1997), a seven-judge bench held that the power of High Courts under Article 226 is part of the basic structure of the Constitution and cannot be removed even by statute creating tribunals — all tribunal decisions remain subject to High Court review.

How It Works in Practice

1. Challenging executive action: When a government order, circular, or official decision is challenged as unconstitutional, the petitioner files a writ petition under Article 226 (in the relevant High Court) or Article 32 (in the Supreme Court, if a fundamental right is specifically at stake). The court considers whether the action is within the executive's authority, follows natural justice principles, is proportionate, and does not violate rights.

2. Challenging legislation: When a statutory provision is challenged as unconstitutional, the court examines whether it falls within the enacting legislature's competence (Union, State, or Concurrent List), whether it violates a fundamental right (Article 13), or whether it contravenes another constitutional provision. If found unconstitutional, the court declares the provision void to the extent of the inconsistency.

3. Substantive and procedural review: Indian judicial review covers both substance — is the law itself valid? — and procedure — was the administrative decision made following proper natural justice? Courts will set aside administrative decisions made without hearing affected parties, without giving reasons, without proper inquiry, or in bad faith, regardless of whether a formal statutory right is at stake.

4. Doctrine of severability: When part of a law is unconstitutional, courts apply the doctrine of severability — upholding the remaining valid portions if they can stand independently. Courts will strike down only the unconstitutional portion unless the remainder is so intertwined with it that the whole must fail.

5. Judicial restraint in policy areas: Courts apply the doctrine of legitimate expectation and principles of proportionality in administrative law, but generally defer to the legislature and executive on policy choices that do not violate constitutional provisions. Courts do not substitute their judgment for that of the executive on matters of technical policy or governance priority; they review whether constitutional and statutory limits have been observed.

What People Often Misunderstand

• High Courts have broader writ jurisdiction than the Supreme Court: The "any other purpose" language in Article 226 means High Courts can review statutory rights violations and administrative failures that do not rise to fundamental rights violations — making them, in practice, more accessible first-line constitutional courts than the Supreme Court.
• Judicial review of constitutional amendments is an Indian innovation: Most constitutional democracies do not allow courts to invalidate constitutional amendments; India's basic structure doctrine — under which the court can review even amendments passed with special majorities — has no close parallel in comparative constitutional law.
• India's scope of judicial review is not narrower than the US just because it uses "procedure established by law": After Maneka Gandhi (1978), Indian courts apply a requirement of just, fair, and reasonable procedure that functions similarly to substantive due process; the textual difference no longer reflects a major operational difference.
• Judicial review is not the same as second-guessing policy: Courts reviewing the constitutional validity of a law do not assess whether it is good policy; they assess whether it is within constitutional authority and does not violate rights; the government remains free to pass constitutionally valid laws that courts may consider unwise.
• Not all administrative decisions are reviewable on merits: Courts do not generally review whether an administrative decision was the best decision — only whether it was lawful, rational, and procedurally proper; judicial review is a supervisory jurisdiction, not an appellate jurisdiction over administration.

What Changes Over Time

The expansion of Article 21's content since Maneka Gandhi has been the most significant evolutionary development in Indian judicial review, reading into the right to life protections covering education (Article 21-A, 86th Amendment, 2002), health, clean environment, dignity, and fair investigation. 

The development of administrative law principles — proportionality, legitimate expectation, structured discretion — has progressively refined the standards courts apply in reviewing executive action. The 2017 Puttaswamy privacy judgment extended judicial review into data governance, digital rights, and surveillance — establishing that any state action in these domains must satisfy the requirements of legality, legitimate state aim, and proportionality.

Sources and Further Reading

• ApniLaw — Judicial Review in India: Article 13, 32 and 226: https://www.apnilaw.com/upsc/indian-constitution/judicial-review-in-india-article-13-32-and-332/
• iPleaders — Difference between Article 32 & Article 226: https://blog.ipleaders.in/difference-article-32-article-226/
• Next IAS — Judicial Review Scope and Significance: https://www.nextias.com/blog/judicial-review/
• Vajiramandravi — Kesavananda Bharati Case: https://vajiramandravi.com/upsc-exam/kesavananda-bharati-case/

(This series is part of a long-term editorial project to explain the structures, institutions, contradictions, and operating logic of constitutional governance, courts, and the rule of law in India for a global audience. Designed as a 25-article briefing cluster on the Constitution, Courts & Rule of Law in India, this vertical examines how constitutional power functions in practice — from judicial review, Public Interest Litigation, constitutional amendments, and High Courts to pendency, compliance gaps, constitutional morality, and the everyday operation of India’s justice system. Written in accessible format for diplomats, investors, researchers, NGOs, civil society actors, students, academics, policymakers, and international observers, the series seeks to explain both how India’s constitutional and judicial architecture is designed to function on paper and how the rule of law actually operates on the ground. This is Vertical 3 of a larger 20-vertical knowledge architecture being developed by IndianRepublic.in under the editorial direction of Saket Suman. All articles are protected under applicable copyright laws. All Rights Reserved.)