The Power to Strike Down Laws: Judicial Review and Its Place in India's Constitutional Order

Judicial Review

The doctrine of judicial review was born in the United States through judicial creativity. Chief Justice John Marshall of the American Supreme Court articulated it for the first time in the celebrated case of Marbury v. Madison (1803). Crucially, the US Constitution itself contains no explicit mention of judicial review — it emerged purely through interpretation.

India adopted a fundamentally different approach. The Indian Constitution directly confers the power of judicial review on the judiciary through several express provisions. Beyond textual conferral, the Supreme Court has gone further and declared judicial review to be a basic feature of the Constitution — placing it beyond the reach of even a constitutional amendment. No Parliament, however large its majority, can abolish or substantially curtail this power.

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At its core, judicial review is the authority of courts to scrutinize whether laws enacted by legislatures and orders issued by the executive conform to the Constitution. If a law or executive action is found to be ultra vires — exceeding constitutional limits — it is declared null and void and rendered unenforceable.

Three Categories (Justice Syed Shah Mohamed Quadri's Classification)

1. Review of Constitutional Amendments — examining whether Parliament's exercise of its constituent power has damaged the basic structure of the Constitution.
2. Review of Parliamentary and State Legislation, including subordinate legislation — checking whether ordinary laws conform to constitutional provisions and do not transgress Fundamental Rights.
3. Review of Administrative Action — examining whether executive and administrative actions by Union, State, and other state authorities stay within constitutional and legal bounds.

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Exam Trap: In the NJAC case (2015), the Supreme Court invalidated both the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014 simultaneously — both were struck down as unconstitutional.

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The Supreme Court has consistently identified three foundational purposes served by judicial review:

1. Constitutional Supremacy — The Constitution is the supreme law. Every organ of government — executive, legislature, or judiciary — draws its authority from it and must act within its limits. Courts serve as the ultimate interpreters to enforce these limits.

2. Federal Balance — In a federal polity, the Centre and States each have defined legislative and executive domains. Judicial review prevents either tier from encroaching on the other's sphere, thereby maintaining the equilibrium envisaged by the Constitution.

3. Protection of Fundamental Rights — Rights are meaningless without enforcement. The judiciary acts as the guardian of Fundamental Rights, ensuring that neither legislative nor executive action can nullify the guarantees given to citizens.

The Supreme Court described this role memorably: courts act as a "sentinel on the qui vive" — an ever-vigilant watchman — over Fundamental Rights. It also observed that if courts were stripped of this power, Fundamental Rights would become a mere adornment, since rights without remedies are hollow.

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The phrase 'judicial review' appears nowhere in the Constitution, yet the power is firmly embedded through numerous articles:

Supreme Court — Primary Articles

• Article 13 — Laws inconsistent with or in derogation of Fundamental Rights are void ab initio. This is the foundational provision for review of ordinary legislation.
• Article 32 — Guarantees the right to approach the Supreme Court directly for enforcement of Fundamental Rights; the SC can issue writs for this purpose.
• Article 131 — Original jurisdiction of the SC in disputes between the Centre and States, or between States inter se.
• Article 132 — Appellate jurisdiction in constitutional cases.
• Article 133 — Appellate jurisdiction in civil cases.
• Article 134 — Appellate jurisdiction in criminal cases.
• Article 134-A — Certificate for appeal to the SC from High Courts (added by the 44th Constitutional Amendment, 1978).
• Article 135 — SC may exercise jurisdiction previously belonging to the pre-constitution Federal Court.
• Article 136 — Special Leave to Appeal: SC may grant leave to appeal from any court or tribunal, except military tribunals and courts martial.
• Article 143 — Advisory jurisdiction: the President may refer questions of law or fact, including pre-constitution matters, to the SC for its opinion.

High Courts — Primary Articles

• Article 226 — HCs can issue writs for enforcement of Fundamental Rights and for any other purpose — making this provision wider in scope than Article 32.
• Article 227 — HCs have superintendence over all courts and tribunals within their territorial jurisdiction, except military courts and tribunals.

Federal Distribution Articles

• Article 245 — Governs the territorial extent of Union and State legislation.
• Article 246 — Demarcates legislative competence through the Union, State, and Concurrent Lists.
• Articles 251 and 254 — In case of conflict between central and state law, central law prevails and the state law is void to that extent.
• Article 372 — Continuance in force of pre-constitution laws.

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Any legislative enactment or executive action can be constitutionally challenged on exactly three grounds:

1. It violates Fundamental Rights guaranteed under Part III.
2. The authority that enacted or issued it lacked the competence to do so under the Constitution.
3. It is repugnant to other constitutional provisions beyond Part III.

India vs USA: A Critical Distinction

Why is India's scope narrower? The Indian Constitution uses the phrase 'procedure established by law', which means courts examine only whether a law is within the competence of the enacting authority. The US 'due process of law' standard additionally allows courts to strike down laws for being unreasonable or procedurally unfair — even if technically within legal competence.

This is why critics have labelled the American Supreme Court a 'third chamber of the legislature' or a 'super-legislature' — a label that does not apply with the same force to its Indian counterpart.

India's Constitutional Synthesis

India has not adopted either extreme. It represents a synthesis of:

• The American principle of judicial supremacy — courts can strike down laws inconsistent with the Constitution.
• The British principle of parliamentary supremacy — Parliament has wide legislative authority within constitutional limits.

This synthesis is enforced through: the written Constitution, federal division of powers, Fundamental Rights, and judicial review itself — all of which constrain Parliament's sovereignty.

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Background: What is the Ninth Schedule?

Article 31B, along with the Ninth Schedule, was inserted by the 1st Constitutional Amendment Act, 1951. The purpose was to place certain laws — initially land reform and zamindari abolition statutes — beyond challenge on grounds of Fundamental Rights violation.

• Laws in the Schedule at inception (1951): 13
• Total laws as of 2016: 282 (the last serial number is 284, but three entries — 87, 92, and 130 — were deleted by the 44th Amendment, 1978, and one entry is numbered 257A)

The Turning Point: I.R. Coelho v. State of Tamil Nadu (2007)

The Supreme Court's landmark ruling in the I.R. Coelho case definitively ended the notion of blanket Ninth Schedule immunity. The key holdings:

1. Judicial review is a basic feature — it cannot be neutralized by inserting a law into the Ninth Schedule through a constitutional amendment.

2. Laws added to the Ninth Schedule on or after April 24, 1973 are fully open to judicial scrutiny if they violate:

   • Articles 14, 15, 19, or 21, or
   • The basic structure of the Constitution.

3. Why April 24, 1973? This is the date of the Kesavananda Bharati judgment — the moment the Basic Structure Doctrine was first propounded. It serves as the constitutional cut-off.

4. The applicable test is the 'rights test' and 'essence of the rights test': what matters is the actual effect and impact of the law on Fundamental Rights, not the form of the amendment inserting it.

5. Laws whose validity was already upheld by the Supreme Court cannot be re-challenged on the basis of the Coelho judgment.

6. If a law previously found to violate Part III rights is subsequently inserted into the Ninth Schedule after April 24, 1973, that insertion remains open to challenge.

7. Past transactions completed under impugned Ninth Schedule laws are protected and cannot be reopened.

Ninth Schedule: Amendments at a Glance

Before April 24, 1973 (generally immune from review):

After April 24, 1973 (open to review on basic structure grounds):

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• The phrase 'judicial review' is absent from the Constitution — yet the power is conferred explicitly through multiple articles.
• Judicial review is a basic feature — unamendable even by constitutional amendment.
• India follows 'procedure established by law' (narrower); USA follows 'due process of law' (wider).
• The NJAC judgment (2015) struck down both the 99th Amendment and the NJAC Act.
• Article 226 (HCs) is wider than Article 32 (SC) — HCs can issue writs for any purpose, not just Fundamental Rights.
• Article 136 (Special Leave) excludes military tribunals and court martial.
• I.R. Coelho (2007): No blanket Ninth Schedule immunity; post-April 24, 1973 laws are reviewable.
• The cut-off date — April 24, 1973 — is the date of the Kesavananda Bharati verdict.
• India's system is a synthesis of judicial supremacy (USA) and parliamentary supremacy (UK).
• Article 134-A was added by the 44th Amendment, 1978 — a frequently tested factual anchor.