Judicial Review: Constitutional Power and Democratic
Accountability
Introduction
Judicial review represents one of the most significant and transformative powers in modern constitutional
democracies, yet it remains among the most contested and misunderstood. At its essence, judicial review
refers to the authority vested in courts, particularly superior courts, to examine governmental action—
whether legislative, executive, or administrative—against the standards established in the Constitution, and
to declare such action void if it violates constitutional provisions or principles. This extraordinary power
grants unelected judges authority to overturn decisions of democratically elected representatives, raising
profound questions regarding judicial legitimacy, the proper boundaries of judicial authority, and the
relationship between courts and democratic majorities. Justice Ambedkar's characterization of Article 32,
which establishes the Supreme Court's fundamental rights jurisdiction, as the "heart and soul of the
Constitution," captures the centrality of judicial review to constitutional governance. Without judicial
review, the Constitution becomes merely aspirational text, unable to constrain those in power or protect
fundamental rights. Yet excessive judicial review threatens democratic accountability and institutional
balance. The Indian constitutional system has evolved a sophisticated approach to judicial review, expanding
its scope while maintaining awareness of institutional boundaries, creating a doctrine that protects
constitutional values without completely subordinating democratic processes to judicial supremacy.
Constitutional Foundations of Judicial Review in India
Unlike the United States, where judicial review emerged through judicial construction in Marbury v.
Madison (1803), the Indian Constitution explicitly provides multiple textual foundations for judicial review.
These provisions collectively establish an extensive and multifaceted judicial review power, reflecting the
Constitution's framers' deliberate commitment to judicial protection of constitutional values.
Article 13 provides the most foundational basis for judicial review. It declares that "the State shall not make
any law which takes away or abridges the rights conferred by this Part"—referring to Fundamental Rights.
Critically, Article 13 provides that any law made in violation of this provision "shall, to the extent of the
contravention, be void." This explicit textual grant of power authorizes courts to examine legislation and
declare laws unconstitutional. Article 13 creates what might be termed "hard" judicial review—courts do not
merely interpret legislation consistently with constitutional values but possess authority to invalidate
legislation entirely. The scope is broad: it applies to parliamentary laws at the national level and state
assembly legislation at state levels, to ordinances issued by the President or Governors, and to subordinate
legislation like rules and regulations. This expansive scope ensures that constitutional rights protection does
not depend on which governmental institution acts.
, Article 32 establishes that "the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed." This article creates a direct avenue to the
Supreme Court for citizens whose fundamental rights have been violated. The Supreme Court possesses
authority to issue writs—orders directing governmental officials to perform constitutional duties or cease
unconstitutional action. While Article 32 provides enforcement mechanisms for Fundamental Rights
specifically, its significance extends beyond remedial procedure. It establishes that protection of
constitutional rights represents a supreme judicial function, positioned at the apex of the constitutional
hierarchy. Ambedkar's reference to Article 32 as the "heart and soul of the Constitution" reflects its
centrality: without effective enforcement mechanisms, rights remain theoretical.
Article 226 grants High Courts jurisdiction to issue writs and orders "for the enforcement of any of the
rights conferred by this Constitution and for any other purpose." This provision proves broader than Article
32 in several respects. First, it extends beyond Fundamental Rights to encompass all constitutional
provisions. Second, it permits High Courts to issue writs for purposes beyond rights enforcement—
essentially authorizing review of any governmental action affecting constitutional or legal rights. Article 226
has proven remarkably elastic, permitting courts to develop extensive administrative law doctrine and to
scrutinize executive action far beyond explicit constitutional text. The breadth of Article 226 reflects
constitutional recognition that governmental power extended far beyond what the Constitution explicitly
addresses, and courts require authority to maintain constitutional governance in areas not explicitly covered.
Article 136 grants the Supreme Court "special leave" jurisdiction to hear appeals from any court or tribunal.
This provision creates a general appellate power permitting the Supreme Court to review decisions below,
ensuring uniform constitutional interpretation and allowing corrective jurisdiction when lower courts err.
Special leave jurisdiction provides flexibility: the Supreme Court exercises discretion regarding which cases
to hear, but the mere existence of this power ensures that important constitutional questions ultimately reach
the nation's highest court.
Article 137 and Article 142 address review of Supreme Court decisions. Article 137 permits review of
Supreme Court judgments where there is an "error apparent on the face of the record." This limited review
power acknowledges that even the highest court makes errors, though the restriction to apparent error
prevents wholesale reconsideration of decided cases. Article 142 grants the Supreme Court "all such powers
as it may deem necessary properly to do any act which may be necessary to be done in any cause or matter
pending before it." This expansive language has permitted the Supreme Court to exercise creative remedial
jurisdiction, fashioning innovative remedies where conventional legal relief proves inadequate.
Together, these provisions establish an elaborate structure for judicial review, with multiple access points,
broad jurisdiction, and flexible remedial powers. The architecture reflects constitutional commitment to
judicial protection of constitutional values while maintaining structural distinctions between courts operating
at different hierarchical levels.
Accountability
Introduction
Judicial review represents one of the most significant and transformative powers in modern constitutional
democracies, yet it remains among the most contested and misunderstood. At its essence, judicial review
refers to the authority vested in courts, particularly superior courts, to examine governmental action—
whether legislative, executive, or administrative—against the standards established in the Constitution, and
to declare such action void if it violates constitutional provisions or principles. This extraordinary power
grants unelected judges authority to overturn decisions of democratically elected representatives, raising
profound questions regarding judicial legitimacy, the proper boundaries of judicial authority, and the
relationship between courts and democratic majorities. Justice Ambedkar's characterization of Article 32,
which establishes the Supreme Court's fundamental rights jurisdiction, as the "heart and soul of the
Constitution," captures the centrality of judicial review to constitutional governance. Without judicial
review, the Constitution becomes merely aspirational text, unable to constrain those in power or protect
fundamental rights. Yet excessive judicial review threatens democratic accountability and institutional
balance. The Indian constitutional system has evolved a sophisticated approach to judicial review, expanding
its scope while maintaining awareness of institutional boundaries, creating a doctrine that protects
constitutional values without completely subordinating democratic processes to judicial supremacy.
Constitutional Foundations of Judicial Review in India
Unlike the United States, where judicial review emerged through judicial construction in Marbury v.
Madison (1803), the Indian Constitution explicitly provides multiple textual foundations for judicial review.
These provisions collectively establish an extensive and multifaceted judicial review power, reflecting the
Constitution's framers' deliberate commitment to judicial protection of constitutional values.
Article 13 provides the most foundational basis for judicial review. It declares that "the State shall not make
any law which takes away or abridges the rights conferred by this Part"—referring to Fundamental Rights.
Critically, Article 13 provides that any law made in violation of this provision "shall, to the extent of the
contravention, be void." This explicit textual grant of power authorizes courts to examine legislation and
declare laws unconstitutional. Article 13 creates what might be termed "hard" judicial review—courts do not
merely interpret legislation consistently with constitutional values but possess authority to invalidate
legislation entirely. The scope is broad: it applies to parliamentary laws at the national level and state
assembly legislation at state levels, to ordinances issued by the President or Governors, and to subordinate
legislation like rules and regulations. This expansive scope ensures that constitutional rights protection does
not depend on which governmental institution acts.
, Article 32 establishes that "the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed." This article creates a direct avenue to the
Supreme Court for citizens whose fundamental rights have been violated. The Supreme Court possesses
authority to issue writs—orders directing governmental officials to perform constitutional duties or cease
unconstitutional action. While Article 32 provides enforcement mechanisms for Fundamental Rights
specifically, its significance extends beyond remedial procedure. It establishes that protection of
constitutional rights represents a supreme judicial function, positioned at the apex of the constitutional
hierarchy. Ambedkar's reference to Article 32 as the "heart and soul of the Constitution" reflects its
centrality: without effective enforcement mechanisms, rights remain theoretical.
Article 226 grants High Courts jurisdiction to issue writs and orders "for the enforcement of any of the
rights conferred by this Constitution and for any other purpose." This provision proves broader than Article
32 in several respects. First, it extends beyond Fundamental Rights to encompass all constitutional
provisions. Second, it permits High Courts to issue writs for purposes beyond rights enforcement—
essentially authorizing review of any governmental action affecting constitutional or legal rights. Article 226
has proven remarkably elastic, permitting courts to develop extensive administrative law doctrine and to
scrutinize executive action far beyond explicit constitutional text. The breadth of Article 226 reflects
constitutional recognition that governmental power extended far beyond what the Constitution explicitly
addresses, and courts require authority to maintain constitutional governance in areas not explicitly covered.
Article 136 grants the Supreme Court "special leave" jurisdiction to hear appeals from any court or tribunal.
This provision creates a general appellate power permitting the Supreme Court to review decisions below,
ensuring uniform constitutional interpretation and allowing corrective jurisdiction when lower courts err.
Special leave jurisdiction provides flexibility: the Supreme Court exercises discretion regarding which cases
to hear, but the mere existence of this power ensures that important constitutional questions ultimately reach
the nation's highest court.
Article 137 and Article 142 address review of Supreme Court decisions. Article 137 permits review of
Supreme Court judgments where there is an "error apparent on the face of the record." This limited review
power acknowledges that even the highest court makes errors, though the restriction to apparent error
prevents wholesale reconsideration of decided cases. Article 142 grants the Supreme Court "all such powers
as it may deem necessary properly to do any act which may be necessary to be done in any cause or matter
pending before it." This expansive language has permitted the Supreme Court to exercise creative remedial
jurisdiction, fashioning innovative remedies where conventional legal relief proves inadequate.
Together, these provisions establish an elaborate structure for judicial review, with multiple access points,
broad jurisdiction, and flexible remedial powers. The architecture reflects constitutional commitment to
judicial protection of constitutional values while maintaining structural distinctions between courts operating
at different hierarchical levels.
