Introduction
Dr. B.R. Ambedkar regarded judicial review as the heart and soul of the Constitution of India. During the Constituent Assembly Debates, Ambedkar described Article 32 – Right to Constitutional Remedies as: “The very soul of the Constitution and the very heart of it.”Since Article 32 enables the enforcement of Fundamental Rights through courts, it automatically strengthens judicial review under Article 13.
Judicial Review is the power of the court to declare Government actions void. The court can strike down the law passed by the legislature if it is inconsistent with the principles of Indian constitution. Article 13 serves as the foundation of Judicial Review in India.
This Article gives the power to High courts and Supreme Court to declare any law null and void if it violates the fundamental rights guaranteed by our constitution. It will be void to the extent of contravention. The concept of judicial review is originated in the United States in the case of Marbury V/s Madison (1803) which declared that court can declare the law as unconstitutional if it is in conflict with the constitution.
Thus, the Principle of Judicial review under Art 13 defines the power of the judiciary to review laws passed by the legislature and actions of the executive branch of the Government and ensure that they are aligned to the constitution.
Concept and Meaning of Judicial Review
Judicial review reinforces the fact that Constitution is the supreme law of the land. All Governmental bodies- Legislature, Executive and Judiciary must act within the constitutional framework. It examines the laws passed by the legislature are consistent with the constitution, and the actions taken by the Government bodies are within their scope of power and not arbitrary. High courts and Supreme courts can review their own judgments to ensure that there are no legal errors. Judicial review in simple terms is the power of the judiciary to examine the constitutionality of legislative and executive actions.
Marbury v. Madison (1803), was a landmark decision of the U.S. Supreme Court that established the principle of judicial review and confirmed that American courts have the power to strike down laws and statutes which violates the Constitution of the United States
Importance of judicial review in Indian Constitution
Article 13 is the foundation of judicial review in India and it empowers the courts to declare the law as unconstitutional if it violates the fundamental rights guaranteed by the Indian Constitution.
Article 13(1) ) of the Indian Constitution says that any laws that which exist even before the Constitution was constituted, and if they are now in conflict with fundamental rights will become invalid in case of any conflict.
Article 13(2) of the Indian Constitution says that the state is not allowed to make laws that violate the fundamental rights of citizens of India. Such laws will be considered to be void in case of violation.
Article 13(3) of the Indian Constitution particularly defines “Law” in the form of legal instruments and customs.
Article 13(4) of the Indian Constitution states that the constitutional amendments under Article 368 do not come under the provisions mentioned under Article 13.
Article 13 judicial review case laws
- Kesavananda Bharati v. State of Kerala (1973): Established the Basic Structure Doctrine, limiting Parliament’s power to amend core constitutional principles, including fundamental rights.
- C. Golaknath v. State of Punjab (1967): Ruled that Parliament cannot amend fundamental rights, treating amendments as “law” under Article 13.
- Minerva Mills Ltd. v. Union of India (1980): Reaffirmed the Basic Structure Doctrine and held limited amending power as a basic feature.
- Chandra Kumar v. Union of India (1997): Declared judicial review as a basic feature; tribunals cannot exclude High Court or Supreme Court jurisdiction.
Scope of judicial review under Article 13
The scope of judicial review under Article 13 empowers the courts to:
(A) Review Pre-Constitutional Laws
Courts can examine laws made before 26 January 1950 and declare them void if they violate Fundamental Rights.
Case: – Keshavan Madhava Menon v. State of Bombay (1951)
Pre-constitutional laws do not become void totally but are unenforceable only to the extent of inconsistency.
(B) Review Post-Constitutional Laws: – Any law made after 1950 that violates Fundamental Rights is void ab initio that is void from the beginning.
Case:- State of Gujarat v. Ambica Mills (1974)
A post-constitutional law violating Fundamental Rights is still valid for non-citizens but void for citizens.
(c) Review of Executive Actions: Since “law” includes orders, notifications, rules, courts can review:
- Administrative orders
- Delegated legislation
- Government notifications
If these violate Fundamental Rights, they can be struck down.
(D) Review of Customs and Usages:- Article 13(3) includes customs and usages having the force of law. Discriminatory social practices can be invalidated.
Example:
Customs denying equality to women can be struck down under under Art 14
Sati Pratha is also banned which was practiced as a custom in India.
(E) Power to Apply Doctrine of Severability
If only a part of a law is unconstitutional, courts separate the valid and invalid part.
Case: – R.M.D.C. v. Union of India (1957)
If the invalid portion can be separated, only that part is struck down.
(F) Power to Apply Doctrine of Eclipse
Pre-constitutional laws inconsistent with Fundamental Rights are not dead but dormant. If the inconsistency is removed, the law becomes enforceable again.
Case: Bhikaji Narain Dhakras v. State of M.P. (1955)
Limitations of judicial review under Article 13
(a) Constitutional Amendments Excluded: – After the 24th Constitutional Amendment (1971), Article 13(4) provides that:
Constitutional amendments are not subject to Article 13. However, courts can still review amendments under the Basic Structure Doctrine. It is laid down in Kesavananda Bharati v. State of Kerala (1973).
(b) Laws Not Violating Fundamental Rights: – If a law does not violate any Fundamental Rights of the citizens, courts cannot strike it down under Article 13.
(c) Reasonable Restrictions Allowed:– Fundamental Rights under Articles 19(2)–19(6) allow reasonable restrictions. So the courts only examine whether the restriction is “reasonable”.
Conclusion
Article 13 serves as the backbone of judicial review and guardian of Fundamental Rights in India. It establishes the Supremacy of the Constitution. It upholds the rule of law as propounded by Dicey. It acts a check on legislative and executive power. The Judicial review aims to protect the citizens from the arbitrary state actions. Dr B. R Ambedkar’s vision is constitutionally embodied through Articles 13, 32, 226, and 136, making the Indian judiciary one of the most powerful guardians of liberty in the world.
About Author
Ashwini Patil-Raulo, a law student at Vilasrao Deshmukh Law College, Pune, is a passionate legal writer with a keen interest in modern legal questions. Her areas of focus include Constitutional Law, laws relating to inmates and prison justice, and the legal regulation of Artificial Intelligence. She actively engages in legal research and writing, striving to shape understanding of legal developments and inspire progressive legal thought.