Judicial review in India is the authority of the Supreme Court and the High Courts to examine any law or government action and strike it down if it conflicts with the Constitution. The power rests on specific constitutional provisions, chiefly Articles 13, 32, 226, and 227, and has been reinforced by Supreme Court rulings that treat judicial review as part of the Constitution’s unamendable core. In practice, this means no statute passed by Parliament, no act of a state legislature, and no executive order is beyond challenge if it violates fundamental rights or exceeds the authority the Constitution grants.
Where the Power Comes From
Article 13 is the most direct textual source. Clause 1 voids every pre-Constitution law to the extent it conflicts with fundamental rights. Clause 2 bars the state from making any law that takes away or abridges those rights, and declares any such law void automatically.1Indian Kanoon. Constitution of India – Article 13 – Laws Inconsistent With or in Derogation of the Fundamental Rights Article 13(3) defines “law” broadly to include ordinances, orders, bylaws, rules, regulations, notifications, and customs with the force of law.2Constitution of India. Article 13 – Laws Inconsistent With or in Derogation of the Fundamental Rights That wide definition is what lets courts examine almost anything the government treats as binding on citizens.
Article 32 lets a person approach the Supreme Court directly when a fundamental right is violated. The Court can issue writs, directions, and orders to enforce any right under Part III.3Indian Kanoon. Constitution of India – Article 32 – Remedies for Enforcement of Rights Conferred by This Part
Article 226 gives every High Court the authority to issue writs across its territorial jurisdiction, and it is broader than Article 32. It covers fundamental rights and “any other purpose,” which brings statutory rights, administrative duties, and legal obligations within reach even when no fundamental right is directly in issue.4Indian Kanoon. Constitution of India – Article 226 For most people challenging government action, the High Court is the first stop.
Article 227 adds a separate supervisory jurisdiction. Each High Court superintends every court and tribunal within its territory, including the power to call for records, prescribe procedural rules, and correct errors in lower tribunals.5Indian Kanoon. Article 227 in Constitution of India This operates even without a writ petition being filed.
The most consequential development came in 1973. In Kesavananda Bharati v. State of Kerala, a 13-judge bench held by 7-6 that Parliament cannot amend the Constitution in a way that destroys its basic structure, and that judicial review is part of that basic structure.6Supreme Court of India. The Basic Structure Judgment This is where the Indian system parts ways with parliamentary-supremacy models: even a constitutional amendment that strips judicial review would itself be reviewable, and liable to be struck down.
What Courts Can Review
Judicial review covers two broad categories of government activity, and the analysis differs for each.
Laws Passed by a Legislature
When a court examines a statute, it asks two questions. First, did the legislature have the constitutional competence to pass it? The Constitution divides legislative power between the Union and the states through detailed lists, and a legislature that strays outside its assigned subjects acts beyond its power. Second, does the content of the law violate any fundamental right or constitutional prohibition? A legislature can hold the power to regulate a subject in general yet still produce a specific provision that infringes protected rights. Courts can strike down the whole statute or sever only the offending parts.1Indian Kanoon. Constitution of India – Article 13 – Laws Inconsistent With or in Derogation of the Fundamental Rights
Executive and Administrative Actions
Executive actions cover the day-to-day decisions of officials and agencies: licenses, welfare schemes, police operations, denial of benefits. Courts do not ask whether the decision was the best one available. They examine whether the official had the authority to act, whether proper procedures were followed, and whether the reasoning behind the decision was rational. The focus is on how the decision was reached, not whether the court would have reached the same conclusion. Judicial review of executive action is about legality and fairness, not about substituting a court’s policy preferences for the government’s.
The Five Writs
Articles 32 and 226 both authorize five types of writs. Each serves a distinct function, and courts expect petitioners to ask for the right one.
- Habeas corpus compels a detaining authority to produce a person before the court and justify the legality of the detention. It is the primary remedy against unlawful arrest or imprisonment.
- Mandamus orders a public official or body to perform a duty they are legally bound to perform. It cannot force a particular discretionary outcome, but it can force an official who refuses to act at all to take action.
- Certiorari directs a lower court or tribunal to transfer its record to the higher court so that a decision already made can be examined and, if necessary, quashed.
- Prohibition stops a lower court or tribunal from continuing proceedings it has no jurisdiction to conduct. The difference from certiorari is timing: prohibition is preventive and halts proceedings before a final order, while certiorari is corrective and addresses orders already passed.7Indian Kanoon. The Workers and Staff Employed Under The vs The Management of The Express
- Quo warranto challenges a person’s right to hold a public office and requires them to show the legal authority under which they claim it.
A person illegally detained needs habeas corpus, not mandamus. Someone whose land was seized by an order already passed needs certiorari to quash it, not prohibition.
Grounds for Challenging a Government Action
A successful challenge has to show that the action fails on at least one recognized legal ground. Indian courts work with several overlapping categories.
Procedural Impropriety
If the law requires certain steps before a decision is made, skipping them can invalidate the decision regardless of whether the outcome would have been the same. The most common requirement is audi alteram partem: a person affected by a decision must get a fair opportunity to be heard before it is made. An agency that revokes a license without giving the holder a chance to respond has committed a procedural violation, and that alone is enough to set aside the decision.
Illegality
A government action is illegal when the official or body simply lacked the legal authority to take it, sometimes called acting ultra vires. If a statute authorizes an agency to regulate street vendors but the agency attempts to shut down factories, there is no legal basis for the action. Courts look at the enabling statute to see whether the specific power exercised was actually granted. Officials sometimes stretch vague statutory language to cover actions the legislature never intended, and this is where illegality challenges are most common.
Irrationality
Even where an official has the authority and follows proper procedure, the decision itself can be so unreasonable that no sensible person acting rationally could have reached it. This threshold, sometimes called Wednesbury unreasonableness after a 1948 English case Indian courts have adopted, is deliberately high. The question is not whether the decision was unwise, but whether the decision-maker ignored obviously relevant facts, relied on irrelevant ones, or reached a conclusion that defies basic logic. Courts reject most irrationality challenges.
Proportionality
Proportionality asks whether the restriction is more severe than necessary to achieve a legitimate goal. A blanket ban where a narrower regulation would do, or a punishment wildly out of scale with the offense, can fail this test. Indian courts have increasingly applied proportionality in fundamental rights cases, especially those involving free speech or personal liberty, typically requiring the government to show that no less restrictive means could accomplish the same objective.
Delay and Laches
Writ petitions under Article 32 have no statutory limitation period, but courts can refuse relief when a petitioner has waited too long without justification. This doctrine, laches, rests on the idea that courts help those vigilant about their rights, not those who sit on them. There is no fixed timeline. Courts weigh the nature of the right, the reason for the delay, and whether granting relief now would prejudice others. An 11-year delay without a valid excuse has been rejected, though courts are reluctant to apply laches mechanically where a genuine fundamental right is at stake.
Who Can File: Public Interest Litigation
One distinctive feature of Indian judicial review is public interest litigation, which allows people who are not personally affected by a government action to bring it to court on behalf of those who cannot do so themselves. In S.P. Gupta v. Union of India (1981), the Supreme Court reasoned that in a country where poverty and illiteracy block access to justice, rigid standing rules would leave fundamental rights unenforceable for the people who need them most.
The relaxation has produced significant interventions. In Hussainara Khatoon v. Home Secretary, State of Bihar (1979), the Supreme Court took up the cause of undertrial prisoners who had been jailed for longer than the maximum sentences they could have received if convicted, and ordered the immediate release of those whose continued detention violated Article 21.8Jharkhand Judiciary. Hussainara Khatoon and Ors vs Home Secretary, State of Bihar
Courts have also developed epistolary jurisdiction, where a letter, telegram, or even a newspaper article can be treated as a formal writ petition. This power is used cautiously: the matter must involve a genuine rights violation, and the person bringing it must be acting in good faith rather than pursuing a private grudge or political agenda.
Reaching the Supreme Court After an Adverse Order
Article 136 gives the Supreme Court a broad discretionary power to grant special leave to appeal from any judgment or order of any court or tribunal in the country, with the sole exception of military tribunals.9Indian Kanoon. Article 136 in Constitution of India This is not a right of appeal. It is a privilege granted entirely at the Court’s discretion, meant to be used sparingly where the case raises a substantial question of law or involves a grave miscarriage of justice. The Court receives tens of thousands of special leave petitions each year and grants only a fraction.
When even a review petition has failed, the last available remedy is the curative petition, created by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra (2002). It is deliberately narrow. A curative petition can succeed only on grounds such as a violation of natural justice where the petitioner was not heard, or undisclosed bias by the presiding judge. The petition must state that these grounds were already raised in the dismissed review and must be certified by a senior advocate. It is first circulated to a bench of the three most senior judges and the judges who delivered the original order. If the bench finds it without merit and vexatious, it can impose heavy costs on the petitioner.10Supreme Court of India. Curative Petition Judgment – Rupa Ashok Hurra v Ashok Hurra
Limits on Judicial Review
The power is broad but not unlimited.
The Ninth Schedule
Article 31B was inserted to shield certain laws from challenge as violations of fundamental rights. Laws placed in the Ninth Schedule were originally treated as immune from judicial review.11Constitution of India. Article 31B – Validation of Certain Acts and Regulations That immunity is no longer absolute. In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court held that any law added to the Ninth Schedule after April 24, 1973, the date of Kesavananda Bharati, remains subject to review if it damages the basic structure. The Court specifically identified Articles 14, 19, and 21 as core components of that structure.
Political Questions
Courts avoid adjudicating pure policy choices or political strategy. Decisions about national security, foreign affairs, and economic policy planning are typically treated as the business of the executive and the legislature. This restraint is not a formal constitutional bar but a self-imposed limit rooted in separation of powers. The judiciary generally draws back when asked to evaluate the wisdom of a policy rather than its legality.
Article 363
Article 363 bars the Supreme Court and all other courts from hearing disputes arising out of treaties, agreements, or similar instruments entered into before the Constitution’s commencement between the rulers of former princely states and the Government of India.12Constitution of India. Article 363 – Bar to Interference by Courts in Disputes Arising Out of Certain Treaties, Agreements, Etc. The disputes it covers are mostly historical now, but the textual bar remains.
What Happens When a Government Officer Disobeys
Judicial review is only as effective as the enforcement behind it. The Contempt of Courts Act, 1971, provides the main lever. A person found in contempt faces simple imprisonment for up to six months, a fine of up to 2,000 rupees, or both.13Indian Kanoon. The Contempt of Courts Act, 1971 – Section 12 – Punishment for Contempt of Court The fine has not been updated since 1971, so the real weight sits in the imprisonment provision and the reputational consequences for officials held in contempt. Courts can also discharge the accused or remit the punishment on a genuine apology. In practice, the threat of contempt is often enough to secure compliance, though cases where officials delay implementing orders are not uncommon.