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White Black Legal – International Law Journal · ISSN 2581-8503
THE SENTINEL ON THE WATCHTOWER: JUDICIAL REVIEW IN INDIA BETWEEN ACTIVISM AND RESTRAINT
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Abstract
THE SENTINEL ON THE
WATCHTOWER: JUDICIAL REVIEW IN INDIA BETWEEN ACTIVISM AND RESTRAINT
AUTHORED BY - NAYELA
RAIES
“I am of the view that if
there is one feature of our Constitution which, more than any other, is basic
and fundamental to the maintenance of democracy and the rule of law, it is the
power of judicial review and it is unquestionably, to my mind, part of the
basic structure of the Costitution.”
- Justice P.N. Bhagwati[1]
Abstract
Judicial review is one
of the most important features of the Indian constitutional framework and
serves as a vital mechanism for maintaining constitutional supremacy,
protecting fundamental rights, and ensuring the rule of law. The Constitution
expressly empowers the judiciary to review legislative and executive actions
through provisions such as Articles 13, 32, and 226.
The evolution of
judicial review in India has been marked by significant judicial
interpretations and landmark decisions. Beginning with a limited and
conservative approach in the early years of constitutional governance, the
judiciary gradually expanded its role through cases such as I.C. Golaknath
v. State of Punjab[2], Kesavananda
Bharati v. State of Kerala[3], and Maneka Gandhi v.
Union of India[4]. The
development of the Basic Structure Doctrine strengthened judicial review by
restricting Parliament's power to alter the fundamental features of the
Constitution. Furthermore, the growth of Public Interest Litigation enhanced
access to justice and reinforced the judiciary's role as a protector of
constitutional values.
The study also examines
the major doctrines associated with judicial review, including the doctrines of
severability, eclipse, waiver, colourable legislation, and pith and substance.
These doctrines have provided important principles for constitutional interpretation
and judicial intervention. At the same time, judicial review faces several
contemporary challenges, such as judicial activism, judicial overreach, growing
executive power, inconsistency in judicial standards, and delays caused by case
backlogs.
The study concludes that
judicial review remains indispensable to Indian democracy. Its effectiveness
depends upon maintaining a balance between judicial independence and
institutional restraint while ensuring that constitutional values, democratic
governance, and fundamental rights continue to be protected in a rapidly
changing society.
Keywords
Judicial Review,
Constitution of India, Constitutional Supremacy, Fundamental Rights, Basic
Structure Doctrine, Judicial Activism, Judicial Restraint, Separation of
Powers, Rule of Law, Public Interest Litigation, Constitutional Governance,
Supreme Court of India.
Introduction
‘There is no better test of the
excellence of a government than the efficiency and independence of its judicial system.’ -James Bryce[5]
Judicial review is one of the most
significant features of the Indian constitutional system. It refers to the
power of the judiciary to examine the validity of legislative enactments and
executive actions, and to declare them unconstitutional if they violate the
provisions of the Constitution. This power acts as a safeguard against
arbitrary use of authority and ensures that all organs of the state function
within their constitutional limits.
The concept of judicial review in
India is rooted in the Constitution itself. Articles 13, 32, and 226 form the
backbone of this doctrine. Article 13 explicitly provides that any law
inconsistent with fundamental rights shall be void, while Articles 32 and 226
empower the Supreme Court and High Courts to enforce these rights. Thus,
judicial review serves as a mechanism to protect individual liberty and uphold
the rule of law.
Although the concept was influenced
by the American constitutional system, India has developed its own unique model
of judicial review. Unlike the United States, where judicial review is based on
judicial interpretation, in India it is expressly provided in the Constitution.
Over time, the scope of judicial review has expanded significantly through
judicial interpretation. Landmark judgments such as Kesavananda Bharati v.
State of Kerala[6] established
the Basic structure doctrine, which limits the amending power of Parliament and
recognizes judicial review as a part of the basic structure of the
Constitution.
The evolution of judicial review
reflects the changing role of the judiciary from a passive interpreter to an
active protector of constitutional values. Especially after the Emergency
period, the judiciary adopted a more proactive approach in safeguarding
fundamental rights and ensuring accountability of the government. The
introduction of Public Interest Litigation further widened access to justice
and strengthened the role of courts in addressing social issues. However, the
increasing use of judicial review has also led to debates regarding judicial
activism and overreach. While it is essential for maintaining constitutional
balance, excessive interference by courts may disturb the separation of powers.
Thus, judicial review in India
represents a dynamic and evolving concept that balances constitutional
supremacy, individual rights, and democratic governance.
1. Research Problem
Judicial review is considered one of
the basic features of the Indian Constitution and serves as an important
mechanism for protecting constitutional supremacy and fundamental rights. Over
the years, the scope of judicial review in India has expanded significantly
through judicial interpretation and landmark decisions of the Supreme Court.
However, this expansion has also raised several concerns regarding judicial
activism, judicial overreach, and interference in legislative and executive
functions. In recent times, issues such as delay in judicial proceedings,
inconsistency in judicial standards, increasing executive power, and challenges
arising from technological developments have affected the effectiveness of
judicial review. There is also a continuing debate regarding the proper balance
between judicial independence and the principle of separation of powers.
Therefore, the present study seeks to examine the evolution of judicial review
in India and critically analyse the major constitutional, institutional, and
contemporary challenges affecting its effective functioning in a democratic
system.
2. Objectives of the
Study
The primary objectives
of this study are:
- To examine the concept and
constitutional basis of judicial review in India.
- To analyse the evolution of
judicial review through landmark judicial decisions.
- To study the various doctrines
developed by courts in the exercise of judicial review.
- To identify the contemporary
challenges affecting the effectiveness of judicial review.
- To evaluate the role of
judicial review in protecting fundamental rights and maintaining constitutional supremacy.
3. Research Questions
The present study seeks to examine
the following research questions:
- What is the concept and
constitutional basis of judicial review in India?
- How has judicial review evolved
through landmark judgments of the Supreme Court?
- What are the major doctrines
developed by the judiciary in the exercise of judicial review?
- What are the contemporary
challenges affecting the effectiveness of judicial review in India?
- How does judicial review help
in protecting fundamental rights and maintaining constitutional supremacy?
4. Hypothesis
The study hypothesizes that judicial
review is a fundamental feature of the Indian Constitution and an essential
mechanism for preserving constitutional supremacy, protecting fundamental
rights, and maintaining the balance of power among the organs of government. It
is further assumed that the evolution of judicial review through constitutional
interpretation and landmark judicial decisions has significantly strengthened
the role of the judiciary as the guardian of the Constitution. At the same
time, the increasing expansion of judicial review has given rise to challenges
such as judicial activism, judicial overreach, delays in judicial proceedings,
and conflicts between the judiciary, legislature, and executive. The study also
assumes that contemporary developments, particularly in the technological and
digital sphere, have created new constitutional issues that require a more
dynamic and balanced approach to judicial review. Therefore, effective judicial
review depends upon maintaining harmony between judicial independence,
constitutional limitations, and democratic governance.
5. Literature review
The concept of judicial review has
been extensively analysed by scholars and constitutional experts. James Bryce
emphasizes the importance of an independent judiciary as a test of democratic
governance. M. P. Jain and D. D. Basu provide a detailed examination of
constitutional provisions and highlight judicial review as a mechanism to
uphold fundamental rights and constitutional supremacy. Similarly, H. M.
Seervai critically analyses the scope and limitations of judicial review, while
J. N. Pandey discusses its practical application in Indian constitutional law.
Recent journal articles, such as
those published in ILI Law Review and National Law School of India
Review, focus on contemporary developments like judicial activism,
governance, and constitutional interpretation.
Despite extensive literature,
limited attention has been given to emerging challenges such as judicial review
in the digital age, inconsistency in judicial standards, and the balance
between judicial activism and institutional restraint, which require further
critical study.
6. Research Methodology
The present study is primarily
doctrinal in nature and is based on analytical and descriptive methods of
research. The research mainly relies on secondary sources such as books,
journal articles, research papers, constitutional provisions, case laws, and
online legal resources. Important judgments of the Supreme Court relating to
judicial review have been analysed to understand the evolution and scope of the
doctrine in India. The study also examines constitutional provisions and
various judicial doctrines associated with judicial review. Relevant legal
literature written by constitutional experts and scholars has been referred to
for a better understanding of the subject. The research aims to critically
analyse the challenges and significance of judicial review in the Indian
constitutional framework.
7. Concept of Judicial
Review in India
‘Judicial Review means the Supremacy
of Law. It is the power of the Court to review the actions of the Legislature,
the Executive and the Judiciary itself and to scrutinize the validity of any
law or action.’
- Supreme Court of India[7]
Judicial review is a fundamental
feature of the Indian Constitution which empowers the judiciary to examine the
constitutionality of legislative and executive actions. It ensures that all
authorities act within the limits prescribed by the Constitution and do not
violate fundamental rights. The doctrine is based on the principle of
constitutional supremacy, which means that the Constitution is the supreme law
of the land.[8]
Cambridge Dictionary defined,
‘Judicial Review as the process in which decision made by a government
department or other public organization is examined by a court of law to decide
whether it was right or not.’[9]
D.D. Basu observes that judicial
review acts as a check on arbitrary use of power and protects constitutional
governance.[10]
The concept of judicial review in
India is explicitly provided in the Constitution. Article 13 in fact provides
for the ‘judicial review’ of all the legalisation in India. The main objective
of this Article is to secure the paramount of the Constitution especially with
regard to fundamental rights.[11]
Further, Articles 32 and 226 empower
the Supreme Court and High Courts respectively to issue writs for the
enforcement of fundamental rights. They can also declare a law unconstitutional
if it is inconsistent with any of the provision of Part III of the Constitution.
These provisions make judicial review an effective mechanism for the protection
of individual liberties and ensure access to justice.[12]
In Minerva Mills Ltd. & Ors. v.
Union of India & Ors.,[13]
the Court reaffirmed that limited amending power and judicial review are
integral to maintaining the balance of the Constitution.
However, responsive judicial review
envisages the separation of powers as a dynamic concept where the judiciary may
step in to check specific functions of the legislature that were not
traditionally understood to be functions that the judiciary checks. Indeed,
even if the separation of powers is understood as a separation of functions,
the checking of the exercise of these functions does not mean the usurpation of
these functions. On the other hand, judicial review can serve as an effective
deterrent of the abuse of power and promote better deliberation in Parliament.[14]
7.1. Historical Evolution of
Judicial Review
The evolution of judicial review in
India reflects the gradual expansion of the judiciary’s role in protecting the
Constitution and fundamental rights. Although the concept was borrowed from the
American system, it has developed uniquely in India through constitutional
provisions and judicial interpretation.[15]
7.1.1. Origin in the United States
The doctrine of judicial review
traces its roots to the 1803 U.S. Supreme Court judgment in Marbury v. Madison[16], where
Chief Justice John Marshall held that it is the duty of the judiciary to
declare any law void which conflicts with the Constitution. This established
the judiciary as the final interpreter of constitutional meaning.
7.1.2. Development in England
In England, unlike the United States,
historically rejected judicial review of primary legislation due to the
doctrine of parliamentary supremacy. Judicial scrutiny was therefore limited to
executive actions. The Human Rights Act, 1998 introduced a partial shift by
empowering courts to assess the compatibility of statutes with Convention
rights and issue “declarations of incompatibility.” Although such declarations
do not invalidate legislation, they create a significant impetus for
parliamentary reconsideration, marking a moderated form of judicial review
within the UK constitutional framework.[17]
7.1.3. Introduction in India
India incorporated judicial review
directly into its constitutional framework through explicit provisions.
Articles 13, 32, 131-136, 226, and 227 collectively empower the judiciary to
scrutinize the validity of legislative and executive actions.[18]
Consequently, judicial review in
India emerged as a constitutionally entrenched guarantee, rather than a
doctrine developed solely through judicial creativity.[19]
7.1.3.1. Early phase
In the initial years after the
adoption of the Constitution, the Supreme Court followed a conservative
approach. Judicial review was mainly confined to testing laws against
fundamental rights. In A.K. Gopalan v. State of Madras,[20] the Court
adopted a narrow interpretation of personal liberty under Article 21 and upheld
preventive detention laws.
However, in State of Madras v.
Champakam Dorairajan,[21] the Court
emphasized the supremacy of fundamental rights over Directive Principles,
thereby strengthening judicial review.
7.1.3.2. Conflict phase
This phase witnessed a direct
conflict between Parliament and the judiciary regarding the power to amend
fundamental rights. In I.C. Golaknath v. State of Punjab,[22] the
Supreme Court held that Parliament could not amend fundamental rights, thereby
expanding the scope of judicial review.
7.1.3.3. Basic structure phase
A major turning point came with Kesavananda
Bharati v. State of Kerala[23],
where the Supreme Court evolved the Basic Structure Doctrine. The Court held
that while Parliament has the power to amend the Constitution, it cannot alter
its basic structure, and judicial review is part of that structure.
This doctrine was further
strengthened in Minerva Mills Ltd. & Ors. v. Union of India &
Ors.,[24] where the
Court held that limited amending power and judicial review are essential
features of the Constitution.
7.1.3.4. Expansion phase
After the Emergency period, the
judiciary adopted an activist role. The scope of judicial review expanded
through Public Interest Litigation (PIL), making justice accessible to the
weaker sections. In Maneka Gandhi v. Union of India,[25] the Court
broadened the interpretation of Article 21, linking it with Articles 14 and 19.
7.1.3.5. Contemporary phase
In recent times, judicial review has
been used to address complex constitutional issues. In Justice K.S.
Puttaswamy (Retd.) & Anr. v. Union of India & Ors.,[26] the
Supreme Court recognized the right to privacy as a fundamental right,
reaffirming the importance of judicial review.
Thus, the evolution of judicial
review in India shows a shift from a limited role to an active guardian of the
Constitution.
7.2. Constitutional Provisions
related to Judicial Review
Judicial review in India is not
merely a judicial innovation but is expressly provided in the Constitution. It
ensures that all laws and actions of the government conform to constitutional
principles. The constitutional framework clearly empowers the judiciary to act
as the guardian of the Constitution and protector of fundamental rights.[27]
7.2.1. Article 13
“All laws
in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void.”[28]
This provision operates as the
cornerstone of judicial review in India, as it confers explicit constitutional
authority upon the judiciary to scrutinize and invalidate legislative
enactments that infringe upon fundamental rights.[29]
7.2.2. Article 32
“The Supreme Court shall
have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part.”[30]
Dr. B.R. Ambedkar described Article
32 as the ‘heart and soul’ of the
Constitution, emphasizing its importance in ensuring judicial review.[31]
7.2.3. Article 226
“Notwithstanding
anything in article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within
those territories directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.”[32]
Article 226 grants wide powers to
High Courts to issue writs not only for the enforcement of fundamental rights
but also for other legal rights. This makes the scope of judicial review at the
High Court level broader than that of the Supreme Court.[33]
7.2.4. Other provisions
Article 372 (1) of the
Constitution establishes the judicial review of the pre-constitution
legislation.
Articles 251 & 254
provides that in case of inconsistency between Union and State Laws; the State
Law shall be void.
Article 246 (3) of
Indian Constitution ensures the State Legislature’s exclusive powers on matters
pertaining to the State List.
Article 245 provides
that the powers of Parliament and State legislatures are subject to the
constitution's provisions.
Articles 131 to136 of
the Constitution entrusts the court with the power to adjudicate disputes
between individuals, between individuals and the state, between the states and
the union, but the court may be required to interpret the provisions of the constitution
and the interpretation given by the Supreme Court becomes the law honoured by
all courts of the land.
Article 137 gives a
special power to the Supreme Court to review any judgment pronounced or order
made by it. An order passed in a criminal case can be reviewed and set aside
only if there are errors apparent on the record.
These provisions collectively
empower the judiciary to uphold constitutional supremacy, protect fundamental
rights, and ensure that all branches of government function within their
limits.
7.3. Doctrines of Judicial Review
Judicial review in India has been
strengthened and expanded through various doctrines developed by the judiciary.
These doctrines help courts in interpreting the Constitution and ensuring that
legislative and executive actions remain within constitutional limits.[34]
7.3.1. Doctrine of Severability
Article 13 of the constitution
incorporates this doctrine. The word ‘to the extent of contravention’ are the
basis of doctrine of severability. This doctrine enumerates that the court can
separate the offending part unconstitutional of the impugned legislation from
the rest of its legislation. Other parts of the legislation shall remain
operative, if that is possible. This doctrine has been considerations of
equality and prudence. It the valid and invalid parts are so inextricably mixed
up that they cannot be separated than the entire provision is declared to be
void. This is known as ‘doctrine of severability’.[35]
In
A.K. Gopalan v. State of Madras,[36]
Section 14 of prevention Detention Act was founded out to be in violation of
Article 14 of the constitution. It was also held that it is section 14 of the
Act which is to be struck down not the act as a whole. It was also held that
the omission of section 14 of the Act will not change the object of the Act and
hence it is severable.
7.3.2. Doctrine of Eclipse
The doctrine of eclipse is based on
the principle that a law which violates Fundamental Rights is not nullity or
void ab initio but becomes only unenforceable. ‘It is over-shadowed by the
fundamental rights and remained dormant, but it is not dead.’[37]
7.3.3. Doctrine of Waiver
The doctrine of waiver has no
application to the provision of law enshrined in Part III of the Constitution.
It is not open to a citizen to waive any of the fundamental rights.[38]
7.3.4. Doctrine of Lifting the Veil
An individual when in
a corporation if does a fraud or a scam then he thinks of hiding behind the
real beneficiaries of the company, but he can’t because the corporate veil can
be lifted by the government by bringing in the doctrine of lifting the veil.[39]
7.3.5. Doctrine of Colourable Legislation
This doctrine means that what cannot
be done directly cannot be done indirectly. If the legislature tries to bypass
constitutional limitations in a disguised manner, the court can invalidate such
laws.[40]
7.3.6. Doctrine of Pith and Substance
This doctrine is used to determine
the true nature of legislation when there is a conflict between Union and State
laws. If the law substantially falls within the powers of the legislature, it
is valid even if it incidentally affects another field.[41]
These doctrines collectively
strengthen judicial review by providing clear principles for constitutional
interpretation.
7.4. Landmark Cases of Judicial
Review
There have been several landmark
judicial review cases in India that have shaped the evolution and significance
of this legal doctrine. Here are some of the most significant cases:
1. Kesavananda Bharati v. State
of Kerala[42]
This case is one of the most
important judicial review cases in India. The Supreme Court held that the
Constitution of India contains a ‘basic structure’ that cannot be amended by
the Parliament. This case reinforced the importance of judicial review in protecting
the fundamental principles of the Constitution.
2. Maneka Gandhi v. Union
of India[43]
In this case, the Supreme Court held
that the right to travel abroad is a fundamental right under the Indian
Constitution. The Court held that any law that restricts this right must
satisfy the test of reasonableness, and if it fails to do so, it would be
struck down.
3. Vishakha v. State of
Rajasthan[44]
This case is significant as it
recognized sexual harassment in the workplace as a violation of a woman's
fundamental rights. The Supreme Court held that employers have a duty to
prevent sexual harassment at the workplace and to provide a safe working environment
for women.
4. S. R. Bommai v. Union
of India[45]
In this case, the Supreme Court held
that the imposition of President's rule in a state must be based on objective
material, and the courts have the power to review the decision to impose
President's rule. This case reaffirmed the importance of judicial review in
upholding the federal structure of the Indian Constitution.
5. Navtej Singh Johar v. Union
of India[46]
This case is significant as it
decriminalized homosexuality in India. The Supreme Court held that Section 377
of the Indian Penal Code, which criminalized consensual homosexual acts, was
declared unconstitutional and violative of the fundamental rights of LGBT
individuals.
These cases demonstrate the
importance of judicial review in India, and how it has been used to protect
fundamental rights, uphold the federal structure of the Constitution, and
promote social justice.
7.5 Contemporary Challenges to
Judicial Review
Judicial review is an essential
feature of the Indian Constitution, but its exercise is not free from
challenges. Over time, several legal, political, and institutional issues have
emerged which affect its effectiveness and legitimacy.
7.5.1. Growing executive power
The increasing centralization and
expansion of executive authority in recent decades has posed significant
challenges to the efficacy of judicial review in maintaining constitutional
checks and balances. As the executive’s influence over governance, policymaking,
and administrative structures grows, the judiciary is often required to
intervene to ensure that executive action remains within constitutional limits.[47]
Indian courts have addressed this
concern in several landmark cases. In ADM Jabalpur v. Shivakant
Shukla,[48] the
Supreme Court was widely criticized for upholding excessive executive power
during the Emergency, a decision later acknowledged as a failure of judicial
oversight. Conversely, in Maneka Gandhi v. Union of India,[49] the Court
adopted a rights-expansive approach, holding that executive restrictions on
personal liberty must meet standards of fairness, reasonableness, and due
process. More recently, in Central Vista Project Case (2021)[50] and Anuradha
Bhasin v. Union of India,[51]
the Court was called upon to scrutinize major executive decisions involving
large-scale public projects and restrictions on civil liberties, reflecting the
ongoing tension between judicial scrutiny and executive discretion.
7.5.2. Legislative pushback
At times, Parliament has expressed
concern over what it perceives as excessive judicial intervention in
legislative and policy matters. In response, certain constitutional amendments
and executive ordinances have been enacted with the apparent objective of
limiting judicial scrutiny. Notable examples include attempts to curtail
judicial review of constitutional amendments, such as provisions in the 42nd
Amendment, and legislative measures affecting the composition and functioning
of judicial bodies, exemplified by the NJAC Act.[52]
7.5.3. Technological and
Digital Age Challenges
The advent of the technological and
digital era has introduced novel constitutional and legal questions, including
data protection, surveillance, digital governance, and regulation of artificial
intelligence. These developments necessitate the evolution of judicial
standards and a re-examination of traditional principles of constitutional
interpretation to ensure that fundamental rights are adequately protected in
the rapidly changing socio-technical landscape.[53]
7.5.4. Backlog and Delays
The effectiveness of judicial review
is significantly undermined by the persistent backlog of cases before Indian
courts. Prolonged pendency leads to delayed adjudication, thereby weakening the
timely enforcement of constitutional rights and diluting the remedial purpose
of judicial review.[54]
Judicial delays significantly affect
the effectiveness of judicial review. Constitutional challenges often take
years to be resolved, reducing the practical value of judicial remedies. This
delay weakens public confidence in the judicial system.[55]
7.5.5. Lack of Clear Standards
Another challenge is the absence of
clear and consistent standards in judicial review. Courts sometimes adopt
different approaches in similar cases, leading to uncertainty. The doctrine of
proportionality and reasonableness is often applied inconsistently, making
judicial outcomes unpredictable.[56]
8. Self-analysis & suggestions
The study of judicial review in
India reveals that it is one of the most essential mechanisms for maintaining
constitutional governance and protecting individual rights. The judiciary has
played a transformative role by expanding the scope of judicial review through
progressive interpretation, especially after the Emergency period. Landmark
judgments such as Kesavananda Bharati[57]
and Maneka Gandhi[58]
demonstrate how the courts have ensured that the Constitution remains a
living document.
However, the study also highlights
certain limitations. Judicial review, though powerful, is often criticized for
leading to judicial activism and overreach. In some instances, courts have
intervened in policy matters, raising concerns regarding violation of the
principle of separation of powers. Additionally, issues such as delay in
judicial proceedings, lack of uniform standards, and growing case backlog
reduce the effectiveness of judicial review. Another significant observation is
that the increasing complexity of governance, especially in the digital era,
has created new challenges for courts. Issues related to data privacy,
surveillance, and technology require specialized judicial understanding and
updated legal frameworks.
To strengthen judicial review, a
balanced approach is necessary. The judiciary must exercise restraint while
ensuring accountability of other organs. There is also a need to develop clear
and consistent standards for judicial intervention. Further, improving judicial
infrastructure and reducing case backlog will enhance efficiency.
Capacity building of judges in
emerging areas of law and greater coordination between institutions can also
contribute to better outcomes. Thus, judicial review should function as a tool
of constitutional balance rather than dominance, ensuring that democracy and
rule of law are effectively preserved. A strong, independent, and responsible
judiciary is vital for upholding the rule of law and ensuring that justice is
not only done but also seen to be done in a constitutional democracy.
9. Conclusion
“Power tends to corrupt, and
absolute power corrupts absolutely.” - Lord Acton[59]
Judicial review stands as a
cornerstone of the Indian constitutional framework, ensuring that all organs of
the state function within the limits prescribed by the Constitution. It
reflects the principle of constitutional supremacy and acts as a safeguard
against arbitrary exercise of power by the legislature and the executive. Over
time, the judiciary has expanded the scope of judicial review through dynamic
interpretation, thereby strengthening the protection of fundamental rights and
promoting social justice.
The evolution of judicial review in
India demonstrates a shift from a limited and conservative approach to an
active and progressive role. Through doctrines such as the Basic Structure
Doctrine and the development of Public Interest Litigation, the judiciary has
emerged as a guardian of constitutional values. At the same time, the
increasing use of judicial review has raised concerns regarding judicial
overreach, delay in justice delivery, and institutional limitations.
Despite these challenges, judicial
review continues to play a crucial role in maintaining the balance of power and
ensuring accountability in governance. It is essential that the judiciary
maintains a balance between activism and restraint to preserve democratic
principles and institutional harmony.
Ultimately, the effectiveness of
judicial review depends on cooperation among all branches of government and
respect for constitutional boundaries.
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[15] Supra note 8 at 177.
[16] 5 U.S. 137 (1803).
[17] Dr. Sanjay Ambekar, “The Doctrine of Judicial
Review: A Critical Examination” 9 IRE Journals 414 (2025).
[18] Supra note 17 at 414.
[19] Id. at 415.
[20] AIR 1950 SC 27.
[21] AIR 1951 SC 226.
[22] AIR 1967 SC 1643.
[23] AIR 1973 SC 1461.
[24] Minerva Mills Ltd. v. Union of India (1980)
3 SCC 625.
[25] (1978) 1 SCC 248.
[26] Justice K.S. Puttaswamy (Retd.) v. Union
of India (2017) 10 SCC 1.
[27] H.M. Seervai, Constitutional Law of India
133 (Universal Law Publishing, Nagpur, 4th edn., 2015).
[28] The Constitution of India, art. 13(1).
[29] Information Technology Act 2000, India, available
at: scribd.com (last visited on May 11, 2026).
[30] The Constitution of India, art. 32(2).
[31] Justice Dr. B S Chauhan, “Judicial Review” available
at: https://nja.gov.in (last visited on May 11, 2026).
[33] K. Shiv Sidharth, “Judicial Governance in India
and its implications for Social Justice, Change and Development” 3 CLR 87
(2022).
[34] M.P. Jain, Indian Constitutional Law 180
(LexisNexis, New Delhi, 8th edn., 2018).
[35] Dr. Banamali Barik, “Judicial Review in India:
An analysis of the Constitutionality of Laws” available at: voiceoflaw.in
(last visited on May 11, 2026).
[36] AIR 1950 SC 27.
[37] Bhikaji Narayan v. State of M.P.,
AIR 1955 SC 781.
[38] Muthiah M. Ct. v. Commissioner of
Income Tax, AIR 1955 SC 146.
[39]Shubhangi Upmanya and Gautam Badlani, “Article 13 of the Indian Constitution” available
at: https://blog.ipleaders.in (last visited on May 12, 2026).
[40] K.C. Gajapati Narayan Deo v. State of
Orissa, AIR 1953 SC 375.
[41] State of Bombay v. F.N. Balsara,
AIR 1951 SC 318.
[42] AIR 1973 SC 1461.
[43] (1978) 1 SCC 248.
[44] (1997) 6 SCC 241.
[45] (1994) 2 SCR 644.
[46] AIR 2018 SC 4321.
[47] Dr. Sanjay Ambekar, “The Doctrine of Judicial
Review: A Critical Examination” 9 IRE Journals 416 (2025).
[48] AIR 1976 SC 1207.
[49] (1978) 1 SCC 248.
[50] Rajeev Suri v. Delhi Development
Authority (2021) SCC Online SC 7.
[51] AIR 2020 SC 1308.
[52] Supra note 47 at 416.
[53] Ibid.
[54] Id. at 417.
[55] M. Asad Malik, “Changing Dimensions of
Federalism in India: An Appraisal” 2 ILI Law Review 89 (2019).
[56] D.D. Basu, Introduction to the Constitution
of India 122 (LexisNexis, New Delhi, 23rd edn., 2015).
[57] Kesavananda Bharati v. State of
Kerala, AIR 1973 SC 1461.
[58] Maneka Gandhi v. Union of India,
(1978) 1 SCC 248.
[59] Information Technology Act 2000, India, available
at: https://www.acton.org (last visited on May 12, 2026).
How to Cite This Article
NAYELA RAIES, THE SENTINEL ON THE WATCHTOWER: JUDICIAL REVIEW IN INDIA BETWEEN ACTIVISM AND RESTRAINT., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 1, September 2026, pp. 952-970. Available at: https://www.whiteblacklegal.co.in/details/the-sentinel-on-the-watchtower-judicial-review-in-india-between-activism-and-restraint
Author & Publication Record
Authors: NAYELA RAIES
Registration ID: 107110 | Published Paper ID: WBL7110
Year: Sep- 2026 | Volume: 4 | Issue: 1
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 952-970
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