judicial review
source: http://racolblegal.com/


India as a nation propagates ‘Rule of Law’ as its ultimate philosophy to govern all its socio-economic and political dimensions. This very philosophy is extracted from the foundational literature of all other laws and statues i.e The Constitution of India.  When the very fragments of this literature come under dispute, its sanctity is protected by the Judiciary. On certain occasions judiciary can overstep and interfere with the functioning of the Legislative and Executive machinery of this one giant democracy, and paradoxically may harm the literature which it is protecting in the very first place.


The constitution defines the genesis of all the rights and powers that are available to the citizens and all the machinery of the country. If the texts of the constitution can be interpreted without any ambiguity then there is no harm, but when certain provisions are silent on the matters related to the privileges, powers, immunity or any of the fundamental rights, as per Hans Kelsen, it becomes an exercise of Judiciary to interpret the ‘sound of this silence’ and preserve the principles of social welfare enshrined in the constitution. The judiciary exercises this power by playing the role of an activist (Judicial Activism), where it uses its creativity with all the precautions and reasonability to interpret(Judicial Review) the constitutional provisions which require deeper insight, to utilize the legislation for the welfare of the society.


There has been tremendous contribution by the Judiciary through its activist role in expanding the horizons of the fundamental rights enshrined in part III of the constitution and nullifying those legislations which defies them. The following examples provide a brief about this role and the spirit with which the doctrine of Judicial Review is exercised.

  • Maneka Gandhi v. Union of India 1987

This case was very fundamental in broadening the scope of Article 21 (Right to life or personal liberty) of the constitution by the Supreme Court.

Earlier, the literal legal interpretation of this article stated that the ambit of personal liberty can be curtailed by legal prescription. This meant that one was allowed to be imprisoned under any legislation or ordinances passed by the government and the courts were not allowed to inquire under the fairness of this measure. But in the Maneka Gandhi’s case, the Court held that governmental restraint on the personal liberty of the citizen should collectively satisfy the principles of reasonableness, fairness and no arbitrariness enshrined in the article 14,19 and 21 of the constitution and curtailment of any of these rights must meet the prescribed threshold for restraints on all of them.

  • Kesavananda Bharati … vs State Of Kerala And Anr 1973

In this case, the Supreme Court transcended all the judicial fora through its judicial creativity and established doctrine of one of its kind which diluted the myth that the “questions of constitutional amendments were political in nature and hence beyond judicial review”. In this case, the Court held even though the constitution provides power to the legislature to amend the constitution itself, it cannot pass any law that is inconsistent with the basic features (fundamental rights, separation of powers, etc.) of the constitution which preserves the ideal and philosophy of the makers of the constitution.


The power of Judiciary to conduct Judicial Review and play the role of an activist is provided by the very provisions of the constitution.

Article 13

This article vests the judiciary (Supreme Court and High Courts) with the power of judicial review to declare any legislative and executive action to be void if it is inconsistent with the Constitution especially part III comprising of Fundamental rights.

Article 32 and 226

These articles allow a citizen to approach Supreme Court (32) or High Courts (226) to enforce their fundamental rights against the state and confers powers to these courts to issue an order for their enforcement.

Article 142

One of the principal provisions of the constitution empowering the Supreme Court to pass a suitable order, under the matters pending before it with aim of doing justice, which becomes a binding law under the territory of India until the  Parliament comes up with the suitable legislation related to the matter under discussion. Article 142 is responsible for Judicial legislation in India and was the reason for the formation of guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces in the case of Vishaka v. State of Rajasthan due to absence of any enacted law formed by the Parliament.

Critical analysis

In reviewing the realms of the new legislature and subsuming them under the ambit of constitutional provisions, Judiciary might overstep the boundaries of its duties leading to the dilution of the doctrine of Separation of Power, which is constituted as the basic structure of the constitution. The controversial judgment of the Supreme Court while performing the role of an activist was under the Hawala Scam Case, where judiciary overstep its boundary and played the role of Investigating Agency by directing the manner under which the case should be investigated, naming the officers to be brought back after the retirement which in no case is a duty of Supreme Court allowed by the Constitution under article 142.

In other examples such as directing the medical institution the manner of conducting the exams for postgraduate students (a suitable function of Executive department), the compulsory play of national anthem and ordering cut in movies (a suited function of Censor Board) is a sheer violation of the doctrine of Separation of Powers. The principal reason behind these interferences can be because of the inefficiency of the Executive to perform its constitutional function and leading to intervention from the Court to seek performance of those functions.

Public Interest Litigation

In view of the operations by the courts on a wider canvass of judicial review, the Supreme Court introduced Public Interest Litigation (PIL) also known as social action litigation, a redressal mechanism accessed by the people who because of their poverty or disability, or any other bona fide member of public on their behalf, are unable to approach the Courts for enforcement of their fundamental rights. Thus, the underprivileged and the downtrodden have secured access to court through the agency of a public-spirited person or organization.

Thus the Supreme Court has been delivering judgments parallel to the Legislative intent and at the same time protecting and developing the dimensions of the fundamental rights. As in the case of the scrapping of section 377 which criminalized consensual intercourse between the adult of the same sex as it violated the fundamental rights of the LQBTQ+ community by creating unreasonable classification and targeted homosexuals as a class.


Harmonizing constitutional provisions with the advancement of society is a crucial task. It creates a passage for the judicial creativity to consciously administer justice where the court sometimes goes out of its way to make sure that it has responded to the hopes and aspiration of the people, because the people of this country, in no uncertain terms, have committed themselves to secure justice – social, economic and political – besides equality and dignity to all.


nikhil jain Nikhil Jain | Gujarat National Law University, Gandhinagar, Gujarat


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