Judicial review

Background and evolution

The idea that courts can strike down a law comes from the United States, where Chief Justice John Marshall reasoned in Marbury v. Madison (1803) that a written constitution is supreme and a law in conflict with it is void. India's Constitution makes the power explicit. Article 13 declares void any law inconsistent with Fundamental Rights, and Articles 32 and 226 give citizens a way to approach the courts.

In the early years, courts read their power narrowly, as in A. K. Gopalan (1950). This changed in the 1970s. Kesavananda Bharati (1973) extended review to constitutional amendments through the basic structure doctrine, and Maneka Gandhi (1978) required that any procedure depriving a person of liberty be fair, just and reasonable. Judicial review became the main tool for protecting rights and keeping power within limits.

Key features and provisions

• What can be reviewed: legislation of Parliament and state legislatures, executive orders, delegated legislation, and constitutional amendments.
• Grounds: lack of legislative competence under the Seventh Schedule, violation of Fundamental Rights, violation of other constitutional provisions, and, for amendments, violation of the basic structure.
• Doctrines used: severability, eclipse, pith and substance, colourable legislation, harmonious construction and reading down.
• Standards: reasonableness and non-arbitrariness (E. P. Royappa, 1974), and proportionality, especially after K. S. Puttaswamy (2017).
• Ninth Schedule: laws placed in it after 24 April 1973 are open to review on basic-structure grounds (I. R. Coelho, 2007).
• Limits: courts usually defer on policy, economics and political questions, and may not substitute their own wisdom for that of the legislature.