Published On: April 18th 2026
Authored By: Sonam Tiwari
Amity University Raipur Chhatisgarh
Abstract
Judicial review is a foundational aspect of constitutional governance in India. It empowers the judiciary to examine legislative and executive actions for conformity with the Constitution. Article 13 of the Constitution of India establishes this power by declaring that laws inconsistent with fundamental rights are void.[1] Over the years, judicial interpretation of Article 13 has evolved through landmark decisions of the Supreme Court, shaping the balance between parliamentary sovereignty and constitutional supremacy. This article examines the scope of judicial review under Article 13, traces its development through seminal case law, and analyses the contemporary challenges surrounding its application.
I. Introduction
The Indian Constitution establishes a system of governance founded upon constitutional supremacy, separation of powers, and the protection of fundamental rights. Among these foundational principles, judicial review occupies a central position. It enables courts to determine whether laws enacted by the legislature or actions taken by the executive are in conformity with constitutional provisions.
Article 13 is indispensable to the protection of fundamental rights. It declares that any law inconsistent with or in derogation of fundamental rights shall be void. This provision empowers the judiciary to act as the guardian of the Constitution and the protector of civil liberties, ensuring that neither the legislature nor the executive may act in violation of constitutionally guaranteed rights.[2]
Over the years, the Supreme Court of India has interpreted Article 13 across a wide range of cases, broadening its scope and clarifying its constitutional significance. These judicial interpretations have profoundly shaped Indian constitutional law and contributed to the development of landmark principles such as the basic structure doctrine.
II. Research Objectives
This article seeks to address the following objectives:
1. To examine the constitutional framework of judicial review under Article 13.
2. To analyse the judicial interpretation and evolution of Article 13 through landmark cases.
3. To evaluate the constitutional challenges and debates surrounding judicial review in India.
III. Meaning and Scope of Article 13
Article 13 establishes the constitutional mechanism to protect fundamental rights from legislative encroachment.
Article 13(1): Article 13(1) renders void all pre-constitutional laws that are inconsistent with fundamental rights. Such laws are not wholly invalidated; they are merely rendered unenforceable to the extent of their inconsistency.
Article 13(2): Article 13(2) prohibits the State from enacting any law that abridges or takes away fundamental rights. Any law made in contravention of this provision is void ab initio. This clause directly restricts the legislative competence of both Parliament and State legislatures.
Article 13(3): Article 13(3) broadly defines “law” to include ordinances, regulations, rules, notifications, and customs having the force of law. This expansive definition ensures that fundamental rights cannot be circumvented through indirect legislative instruments.
Article 13(4): Article 13(4), inserted by the 24th Constitutional Amendment Act, 1971, clarifies that constitutional amendments made under Article 368 shall not be regarded as “law” within the meaning of Article 13.
IV. Origin of Judicial Review
The doctrine of judicial review traces its modern origin to the landmark American decision in Marbury v. Madison (1803), wherein Chief Justice John Marshall held that the judiciary is obligated to interpret the Constitution and to declare void any law that conflicts with it.[3] Although judicial review is explicitly embedded in the Indian Constitution — unlike in the United States, where it was judicially implied — constitutional scholars widely acknowledge the influence of this American precedent on Indian constitutional thinking.
V. Early Judicial Interpretation of Article 13
State of Madras v. Champakam Dorairajan[4] was among the first cases to interpret Article 13 in the post-constitutional era. The Supreme Court held that a government order providing for caste-based reservations in educational institutions violated Article 29(2), a fundamental right. The Court affirmed that fundamental rights are paramount and cannot be overridden by other constitutional provisions unless the Constitution expressly so provides. This ruling directly precipitated the First Constitutional Amendment, 1951.
VI. Constitutional Amendments and Article 13
A significant constitutional controversy arose over whether amendments to the Constitution itself could be subjected to judicial review under Article 13 — specifically, whether a constitutional amendment qualified as “law” under Article 13(2).
In Shankari Prasad v. Union of India,[5] the Supreme Court held that a constitutional amendment under Article 368 does not constitute “law” within the meaning of Article 13. Parliament was therefore free to curtail or abridge fundamental rights through the constitutional amendment process.
However, the Court reversed its position in Golak Nath v. State of Punjab,[6] ruling that a constitutional amendment is “law” under Article 13 and that Parliament consequently lacks the power to abridge fundamental rights. This decision created a serious constitutional impasse between the legislature and the judiciary, significantly constraining Parliament’s amending power and intensifying institutional tensions between the two branches.
VII. Emergence of the Basic Structure Doctrine
The constitutional crisis precipitated by Golak Nath was authoritatively resolved by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala.[7] A thirteen-judge Constitution Bench held that while Parliament possesses broad power to amend the Constitution — including its fundamental rights provisions — it cannot alter or destroy the basic structure of the Constitution.
The basic structure doctrine encompasses core constitutional features such as the supremacy of the Constitution, the rule of law, separation of powers, and judicial review itself. This doctrine established an enduring constitutional equilibrium between Parliament’s amending powers and the inviolable limits imposed by constitutional principles.
VIII. Reinforcement of Judicial Review
Subsequent constitutional decisions have consistently reinforced the primacy of judicial review. In Minerva Mills v. Union of India,[8] the Supreme Court held that both the limited amending power of Parliament and the power of judicial review constitute essential features of the basic structure of the Constitution, rendering them immune from legislative abridgement.
Similarly, in L. Chandra Kumar v. Union of India,[9] the Court held that the power of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 respectively is an integral component of the basic structure and cannot be excluded by any statute or constitutional amendment.
IX. Doctrine of Waiver of Fundamental Rights
A related and significant issue concerns whether individuals may waive their fundamental rights. In Basheshar Nath v. Commissioner of Income Tax,[10] the Supreme Court held that fundamental rights cannot be waived by an individual. The rationale was that these rights are not merely personal entitlements but are designed for the benefit of the public at large, and their enforcement is therefore a matter of constitutional obligation rather than individual choice.
X. Contemporary Constitutional Challenges
Notwithstanding its constitutional importance, judicial review under Article 13 confronts several contemporary challenges.
1. Judicial Activism vs. Judicial Overreach: Critics argue that the judiciary has, on occasion, transgressed its constitutional boundaries by substituting its policy judgments for those of the legislature — an exercise characterised as judicial overreach. Proponents counter that such interventionism is necessary and constitutionally sanctioned when fundamental rights are at stake.
2. Institutional Balance: Maintaining an appropriate equilibrium between the legislative and judicial branches remains an enduring challenge. While Parliament embodies democratic will, the judiciary upholds constitutional supremacy — and both imperatives must be reconciled within the framework of the basic structure doctrine.
3. Expanding Scope of Fundamental Rights: The ambit of fundamental rights has grown substantially through judicial review. In Maneka Gandhi v. Union of India,[11] the Supreme Court held that any procedure established by law must be “fair, just, and reasonable,” thereby infusing substantive content into Article 21. Subsequently, in Justice K.S. Puttaswamy v. Union of India,[12] a nine-judge bench unanimously recognized the right to privacy as a fundamental right under Article 21.
XI. Comparative Perspective
Different constitutional systems adopt divergent approaches to judicial review.
United States: The judiciary exercises expansive powers to invalidate legislation that conflicts with the Constitution, a power derived from judicial implication since Marbury v. Madison.
United Kingdom: The doctrine of parliamentary sovereignty traditionally limits the judiciary’s capacity to strike down primary legislation, although the Human Rights Act, 1998 has introduced some degree of judicial scrutiny.
India: The Indian constitutional system charts a middle course. The judiciary is empowered to strike down laws that violate the Constitution, while Parliament retains broad amending power — subject to the constraints of the basic structure doctrine — producing a unique and nuanced constitutional equilibrium.
XII. Conclusion
Judicial review under Article 13 plays an indispensable role in maintaining constitutional supremacy and safeguarding the fundamental rights of citizens. Through sustained judicial interpretation, the Supreme Court of India has progressively expanded the scope of Article 13 and developed foundational doctrines — most notably the basic structure doctrine — that ensure the enduring supremacy of the Constitution.
The judgments in Kesavananda Bharati v. State of Kerala and Minerva Mills v. Union of India remain pillars of Indian constitutional jurisprudence, delineating the boundaries of parliamentary power while preserving core constitutional values. While debates surrounding judicial activism and institutional balance persist, the role of judicial review within India’s constitutional democracy is beyond question. Article 13 continues to serve as the primary constitutional bulwark against legislative and executive overreach, ensuring that all state action remains in conformity with the Constitution of India.
References
[1] M.P. Jain, Indian Constitutional Law (LexisNexis, 8th ed.).
[2] V.N. Shukla, Constitution of India (Eastern Book Company, 13th ed.).
[3] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[4] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
[5] Shankari Prasad v. Union of India, AIR 1951 SC 458.
[6] Golak Nath v. State of Punjab, AIR 1967 SC 1643.
[7] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[8] Minerva Mills v. Union of India, AIR 1980 SC 1789.
[9] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[10] Basheshar Nath v. Commissioner of Income Tax, AIR 1959 SC 149.
[11] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[12] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
