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Judicial Review and Its Evolution in Constitutional Jurisprudence

Introduction

Judicial review has emerged as one of the most significant constitutional mechanisms in democratic governance. Within the Indian constitutional framework, judicial review refers to the power of constitutional courts to examine the validity of legislative enactments, executive actions, and constitutional amendments to ensure their conformity with the Constitution. Rooted in the doctrine of constitutional supremacy and the rule of law, judicial review acts as a safeguard against arbitrary state action and protects fundamental rights.

The Indian Constitution does not explicitly define the term “judicial review”; however, its foundations can be traced to Articles 13, 32, 131–136, 226, and 246, which collectively empower the judiciary to scrutinize legislative and executive acts. Over time, the Supreme Court of India has developed an expansive jurisprudence around judicial review, transforming it into a cornerstone of constitutional governance. Through a series of landmark judgments and evolving judicial reasoning, the Indian judiciary has shaped the contours of constitutional interpretation and democratic accountability.

This article traces the evolution of judicial review in India through landmark constitutional decisions and scholarly interpretations, illustrating how courts have progressively expanded the scope of constitutional oversight.

Origins of Judicial Review in the Indian Constitutional Framework

The concept of judicial review in India was heavily influenced by the American constitutional tradition established in Marbury v. Madison. However, the Indian Constitution adopted a more structured model by explicitly embedding judicial review within constitutional provisions.

In the early constitutional years, the Supreme Court adopted a relatively cautious approach while interpreting legislative power and fundamental rights. The judiciary initially focused on determining the extent to which Parliament could amend the Constitution and whether fundamental rights could be curtailed through constitutional amendments.

This question became central in a series of constitutional conflicts between Parliament and the judiciary, ultimately shaping the doctrine of judicial review in India.

Constitutional Amendments and the Limits of Parliamentary Power

A turning point in the evolution of judicial review occurred with the landmark case of Kesavananda Bharati v. State of Kerala. This historic decision addressed the extent of Parliament’s power to amend the Constitution under Article 368. A thirteen-judge constitutional bench—the largest in the history of the Supreme Court—held that while Parliament possesses wide powers to amend the Constitution, it cannot alter its “basic structure.”

The Court reasoned that certain fundamental features such as the supremacy of the Constitution, separation of powers, rule of law, and judicial review itself form part of the Constitution’s core identity. Justice H.R. Khanna’s pivotal opinion emphasized that the Constitution embodies enduring constitutional principles that cannot be destroyed through amendment.

The judgment fundamentally altered Indian constitutional jurisprudence by introducing the Basic Structure Doctrine. Judicial review thus evolved from a mechanism to test ordinary legislation to a powerful tool capable of reviewing constitutional amendments themselves. The Court effectively placed substantive limits on the amending power of Parliament, thereby ensuring the preservation of constitutional democracy.

Scholars such as Granville Austin have described the decision as a “constitutional revolution,” arguing that it reconciled the competing principles of parliamentary sovereignty and constitutional supremacy. Similarly, jurist Upendra Baxi has characterized the judgment as the moment when the judiciary assumed the role of the “ultimate guardian of constitutional morality.”

Judicial Review During the Emergency: A Constitutional Crisis

The strength of judicial review was severely tested during the period of the Emergency between 1975 and 1977. One of the most controversial decisions of the Supreme Court emerged in ADM Jabalpur v. Shivkant Shukla, commonly known as the Habeas Corpus case.

The central question before the Court was whether citizens could approach courts for the enforcement of fundamental rights during a proclamation of emergency. The majority of the Court held that during an emergency, the right to challenge unlawful detention through habeas corpus petitions could be suspended.

Justice H.R. Khanna delivered the lone dissent, asserting that the rule of law and the right to life cannot be extinguished even during extraordinary constitutional circumstances. His dissent later gained recognition as one of the most significant opinions in Indian constitutional law.

From a jurisprudential perspective, the ADM Jabalpur decision represented a temporary retreat of judicial review. Many constitutional scholars have criticized the judgment as a failure of the judiciary to protect civil liberties during a constitutional crisis. Legal scholars such as A.G. Noorani and H.M. Seervai have argued that the decision undermined the very foundation of constitutionalism by subordinating individual liberty to executive power.

In later years, the Supreme Court itself acknowledged the flawed reasoning in ADM Jabalpur and effectively overturned its principles, reaffirming the centrality of judicial review in protecting fundamental rights.

Reaffirmation of Judicial Review and the Basic Structure Doctrine

The post Emergency period witnessed a renewed assertion of judicial authority. In Indira Nehru Gandhi v. Raj Narain, the Supreme Court examined the validity of the Thirty-Ninth Constitutional Amendment, which attempted to immunize the election of the Prime Minister from judicial scrutiny.

The Court struck down the amendment, holding that it violated the basic structure of the Constitution, particularly the principles of free and fair elections and judicial review.

This decision reaffirmed that constitutional amendments designed to shield governmental actions from judicial scrutiny would be unconstitutional. The Court emphasized that judicial review is essential to preserve democratic accountability and constitutional balance.

The evolution of judicial review continued in Minerva Mills v. Union of India, where the Supreme Court invalidated certain provisions of the Forty-Second Constitutional Amendment that attempted to curtail judicial review and expand Parliament’s amending power.

The Court held that limited government and judicial review are integral elements of the Constitution’s basic structure. The judgment also articulated the need for harmony between fundamental rights and directive principles, emphasizing that neither can be allowed to destroy the other.

Chief Justice Y.V. Chandrachud observed that destroying judicial review would effectively convert the Constitution into a “controlled Constitution,” thereby eroding democratic governance.

Expansion of Judicial Review in Contemporary Constitutional Law

In the decades following the Emergency, judicial review evolved from a defensive constitutional mechanism into an expansive doctrine shaping governance and public policy. Courts began actively reviewing executive discretion, administrative action, and even complex policy decisions affecting fundamental rights.

The judiciary increasingly invoked the principles of constitutional morality, rule of law, and substantive due process to evaluate governmental actions. Through public interest litigation and rights-based jurisprudence, judicial review expanded to encompass environmental protection, socio-economic rights, and governmental accountability.

Modern constitutional jurisprudence has therefore moved beyond traditional separation-of-powers disputes, positioning the judiciary as a central actor in the protection of constitutional values.

Scholarly Perspectives on the Evolution of Judicial Review

Legal scholars have extensively debated the implications of judicial review in India. Granville Austin describes the Indian Constitution as a “seamless web,” arguing that judicial review plays a crucial role in maintaining the balance between state power and individual rights.

Upendra Baxi has characterized the expansion of judicial review as a form of “transformative constitutionalism,” where courts actively reinterpret constitutional principles to promote social justice and democratic governance.

Conversely, some scholars such as Mark Tushnet and Ran Hirschl caution against excessive judicial activism, arguing that strong judicial review may shift democratic decision-making away from elected institutions.

Despite these debates, there is widespread academic consensus that judicial review remains indispensable to constitutional democracy. It functions not merely as a legal doctrine but as a structural safeguard preserving constitutional identity.

Conclusion: Judicial Review as the Backbone of Constitutional Democracy

The evolution of judicial review in India reflects an ongoing dialogue between the judiciary, the legislature, and the executive. From its cautious beginnings in the early constitutional years to the transformative judgments of the late twentieth century, judicial review has become the backbone of constitutional governance.

Landmark decisions such as Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narain, ADM Jabalpur v. Shivkant Shukla, and Minerva Mills v. Union of India collectively demonstrate how constitutional courts have shaped the doctrine through judicial reasoning and constitutional interpretation.

Today, judicial review stands as a fundamental pillar of constitutionalism, ensuring that governmental power remains subject to constitutional limitations. By preserving the supremacy of the Constitution and protecting fundamental rights, judicial review continues to play an indispensable role in sustaining democratic governance and the rule of law.