Topic 04 of 6 · Chapter 10 · Indian Polity
Judicial Review — Significance & Basic Structure Doctrine
What is judicial review, constitutional basis, scope, basic structure doctrine, judicial activism vs restraint, and PIL.
📋 In This Article
1. What is Judicial Review?
Judicial review is the power of the courts to examine the constitutionality of legislative and executive actions. If any law or action is found to be inconsistent with the Constitution, the court can declare it void.
💡 Key Idea: Judicial review is the cornerstone of constitutional democracy. It ensures that the Constitution is the supreme law and that no one — not even Parliament — can violate it. It was borrowed from the USA (Marbury v. Madison, 1803).
2. Constitutional Basis
The constitutional basis for judicial review in India:
- Article 13: Laws inconsistent with Fundamental Rights are void
- Article 32: Right to move SC for enforcement of FR
- Article 226: HC can issue writs for enforcement of any legal right
- Article 131: SC’s original jurisdiction in Centre-State disputes
- Article 137: SC can review its own judgments
3. Scope of Judicial Review
Judicial review in India extends to:
- Legislative actions: Laws passed by Parliament and State Legislatures can be struck down if they violate the Constitution
- Executive actions: Orders, notifications, policies of the government can be struck down if they violate the Constitution or are arbitrary
- Constitutional amendments: Even constitutional amendments can be struck down if they violate the basic structure (Kesavananda Bharati, 1973)
⭐ Exam Fact: India has a more limited judicial review than the USA. In the USA, courts can review any law on any ground. In India, courts primarily review laws on constitutional grounds (violation of FR, ultra vires, etc.).
4. Basic Structure Doctrine
The basic structure doctrine was established in Kesavananda Bharati v. State of Kerala (1973). Key points:
- Parliament can amend the Constitution but cannot destroy its basic structure
- Even constitutional amendments can be struck down if they violate the basic structure
- The basic structure includes: supremacy of Constitution, republican and democratic form of government, secular character, separation of powers, federal character, judicial review, free and fair elections, unity and integrity of India, etc.
✅ Remember: The basic structure doctrine is the most important constitutional principle in India. It limits Parliament’s amending power and protects the core of the Constitution. No exhaustive list of basic structure elements has been given — the SC determines it case by case.
Important cases on basic structure:
- Kesavananda Bharati (1973): Basic structure doctrine established
- Indira Gandhi v. Raj Narain (1975): Free and fair elections are basic structure
- Minerva Mills (1980): Harmony between FR and DPSP is basic structure
- S.R. Bommai (1994): Secularism and federalism are basic structure
- NJAC case (2015): Independence of judiciary is basic structure
5. Judicial Activism vs Judicial Restraint
| Judicial Activism | Judicial Restraint |
|---|---|
| Courts actively interpret the Constitution to protect rights | Courts defer to the legislature and executive on policy matters |
| Courts fill gaps in legislation | Courts stick to the literal meaning of the Constitution |
| Courts issue directions to government on policy matters | Courts avoid interfering in executive/legislative domain |
| Example: PIL, expanding Article 21 | Example: Deferring to Parliament on economic policies |
6. Public Interest Litigation (PIL)
PIL is a unique contribution of the Indian judiciary. Key features:
- Developed by Justice P.N. Bhagwati and Justice V.R. Krishna Iyer in the 1980s
- Relaxed the rule of locus standi — any public-spirited person can file a PIL
- Even a letter or postcard to the court can be treated as a PIL
- Used to address issues like bonded labour, prison conditions, environmental pollution, child labour, etc.
- PIL is a form of judicial activism
⭐ Exam Fact: The first PIL in India was filed by Kapila Hingorani in 1979 (Hussainara Khatoon case) regarding undertrial prisoners in Bihar. Justice P.N. Bhagwati is called the “Father of PIL in India.”
7. Key Points for Exam
🔑 Must-Remember Facts
- Judicial review borrowed from USA
- Constitutional basis: Articles 13, 32, 226
- Basic structure doctrine: Kesavananda Bharati (1973)
- Basic structure: Supremacy of Constitution, democracy, secularism, federalism, judicial review
- NJAC struck down (2015): Independence of judiciary is basic structure
- PIL developed by: Justice P.N. Bhagwati in 1980s
- First PIL: Hussainara Khatoon (1979) — undertrial prisoners
- PIL relaxes: Locus standi rule
- Judicial review extends to: Laws, executive actions, constitutional amendments
- S.R. Bommai (1994): Secularism and federalism are basic structure