Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246.
Judicial review is one of the checks and balances in the separation of powers, the power of the judiciary to supervise the legislative and executive branches and ensure constitutional supremacy. The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of the Constitution of India. Since Kesavananda Bharati v. State of Kerala (1970), the courts can invalidate any constitutional amendments if they infringe on the Basic Structure of the Constitution of India.
Frequently, judicial review is used to protect and enforce the Fundamental Rights guaranteed in the Constitution. To a lesser extent, judicial review is used in matters concerning legislative competence concerning the centre-state relations.
History
Constituent Assembly
Article 13
Article 13 deals with the Laws inconsistent with the Fundamental Rights. The Constituent Assembly debated the Draft Article on the 25th, 26th and 29th November 1948 and adopted the amended Draft Article on 29 November 1948.
The executive and legislative bodies cannot take any actions that infringe on the Rights conferred by Part 3 of the Constitution. If they do, the Courts can void part of the legislative or executive action that infringes on the Rights.
Article 32
Article 32 guarantees the right to approach the Supreme Court for Constitutional Remedies when their Fundamental Rights are violated. The Constituent Assembly debated and adopted the Draft Article with some amendments on 9th December 1948.
The Constituent Assembly was unanimous about the importance of the Article. Gammiḍidala Durgabai, the only woman in the Committee on the Rules of Procedure, said
Madabhushi Ananthasayanam Ayyangar, Member of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, said
B. R. Ambedkar, Chairman of the Drafting Committee, noting the majority of those who spoke on this article have realised the importance and significance, said, While the members have recognised the importance of Constitutional Remedies, B. R. Ambedkar noted that despite the discussions on writs, members have not realised the importance of including the writs in this Article. After the adoption of the Constitution, a simple majority would not be able to take away the power to issue writs.
Article 141
Article 141 stated that the decisions of the Supreme Court were binding on all other courts in India. The Constituent Assembly debated and adopted the Draft Article on 27th May 1949.
During the debate, B. R. Ambedkar clarified that though the Article reads all courts in India, it does not include the Supreme Court. The Supreme Court would be free to change its decision and take a different view from the one it had taken before. Following the clarification, the Draft Article was adopted without any amendment.
Article 142
Article 142 stated that any decree or order passed by the Supreme Court to do complete justice was enforceable throughout the territory of India. The Constituent Assembly adopted the Draft Article on 27th May 1949.
Parliamentary Supremacy
The Parliament enacted the First Amendment to the Constitution on 18th June 1951, adding the Ninth Schedule to Constitution to protect specific laws from judicial review. When the constitutionality of the amendment was challenged, a five-judge bench of the Supreme Court held that Article 368 grants the Parliament the power to amend the Constitution, including the Fundamental Rights and Article 368 in Shankari Prasad Singh Deo v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965). The Bench held that the term law in Article 13(2) does not include the Constitutional Amendments.
Judicial Supremacy
An eleven-judge bench of the Supreme Court overruled the previous ruling on judicial review of the Constitutional Amendments in Golaknath v. State Of Punjab (1967). Since the amendment of the Constitution is a legislative process, an amendment under Article 368 is law within the meaning of Article 13 of the Constitution. Therefore, an amendment that "takes away or abridges" a Fundamental Right is void.